The Issue Whether the Petitioner established just cause for the termination of Respondent’s employment as a school bus driver.
Findings Of Fact The School Board is the state entity designated to operate, control, and maintain the public school system. The School Board’s power includes the authority to enter into labor contracts and to terminate educational support personnel. Ms. Stevenson began working for the School District in 2003 as a school bus assistant, and eventually became a school bus driver in August 2004. A review of Ms. Stevenson’s performance assessments show that she was a good employee for the time period leading up to the incidents that are the subject of this hearing. For example, Ms. Stevenson’s Performance Assessment conducted for the July 1, 2012, through June 30, 2013, states that: Ms. Stevenson shows great leadership and pays great attention to detail. She shows respect towards her students, her school and her fellow employees. Ms. Stevenson is always in uniform and shows great professionalism both on and off the clock. Ms. Stevenson is very passionate about her work and takes great pride in doing a great job. It is a pleasure and honor working with Ms. Stevenson. The incidents that are subject of this final hearing occurred during the following school year for 2013-2014. On April 25, 2014, Ms. Stevenson was driving her school bus route, returning the students to their homes. Shortly after beginning the bus route, Ms. Stevenson began to feel sharp pains in her chest. Ms. Stevenson made her first bus stop, and then radioed the School District’s bus dispatch for help. She had stopped the bus in a safe location and was told to wait for Emergency Management Services (EMS) paramedics. Ms. Beatrice Aney, an assistant supervisor at the School District’s Leonard Transportation Compound (bus depot), was notified about Ms. Stevenson’s call. EMS was contacted, and the School District sent another bus to finish the route, and Ms. Aney to assist. The paramedics arrived at the scene and began to evaluate Ms. Stevenson’s condition. Near that same time, Ms. Aney arrived and boarded the school bus in order to watch the children, as the paramedics helped Ms. Stevenson. The paramedics determined that Ms. Stevenson needed to be transported to the local hospital for further evaluation. Ms. Stevenson was reluctant to leave the bus in the ambulance, and expressed her concern about being able to retrieve her car keys and pick her child up from daycare on time. Ms. Stevenson believed that the paramedics had spoken with Ms. Aney, and that Ms. Aney had promised that Ms. Stevenson would be picked up from the hospital. In the confusion of the bus, Ms. Aney did not hear or make any promise to Ms. Stevenson about transporting Ms. Stevenson from the hospital. At approximately 3:45 p.m., Ms. Stevenson was admitted into the hospital. She was diagnosed as having a panic attack, and was administered Xanex for anxiety. According to the hospital record and Ms. Stevenson’s testimony, she was released from the hospital at approximately 5:15 p.m. After Ms. Stevenson was transported to the hospital, Ms. Aney returned to the bus depot. Another school bus had been dispatched and finished Ms. Stevenson’s school bus route. Following her discharge from the hospital, Ms. Stevenson called the bus depot seeking a ride from the hospital back to the depot. Ms. Luvenia Brown answered the phone. The bus dispatch office was described as a busy place, and Ms. Aney was working with the many different driver requests. At the time Ms. Stevenson called, Ms. Aney was sitting across from Ms. Brown, who answered the phone. Ms. Brown, holding the phone receiver with Ms. Stevenson on the line, asked Ms. Aney about transporting Ms. Stevenson from the hospital. Ms. Aney stated that she did not have anyone who could pick up Ms. Stevenson at that moment. Ms. Stevenson overhearing the conversation between Ms. Brown and Ms. Aney stated “f**k it, she would walk,” and then hung up. Unfortunately, in Ms. Stevenson’s anger, she did not speak with either Ms. Aney or Ms. Brown before hanging up the phone. Had Ms. Stevenson waited a moment, she would have learned that Ms. Aney was going to drive to the hospital to pick up Ms. Stevenson. Ms. Aney’s statement that she did not have anyone who could transport Ms. Stevenson related to the fact that she did not have an available driver. Ms. Stevenson left the hospital angry, and began walking what would have been approximately a six-mile trip from the hospital. As she was walking, Ms. Stevenson was seen by Ms. Niurka Diaz, a fellow school bus driver who recognized Ms. Stevenson. Ms. Diaz had heard about Ms. Stevenson’s illness on the bus radio, and had already completed her school bus route. Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At this point, Ms. Stevenson had walked approximately four-tenths of a mile from the hospital. While Ms. Stevenson was enroute to the bus depot, Ms. Aney had left for the hospital in order to transport Ms. Stevenson. Ms. Stevenson arrived at the school bus depot angry, and she walked into the dispatch office. Upon entering the office, Ms. Stevenson began a prolonged, profane tirade stating, in essence, that her co-workers did not care what happened to her, and then threatening “where the f**k is Beatrice? I am going to beat her a**.” During Ms. Stevenson’s outburst, she grabbed at papers on the wall and crumpled them. Within a few minutes, Ms. Stevenson exited the dispatch office and then entered the bus driver lounge. She continued to yell profanities in the hallway and doorway of the bus driver lounge. One of the drivers, Ms. Tomeika Harris, Ms. Stevenson’s friend, attempted to find out what was wrong. Ms. Harris reached for Ms. Stevenson’s arm. The video and testimony show that Ms. Stevenson flailed her right arm upward in order to throw off Ms. Harris’ hand. Consequently, when Ms. Harris’ hand was thrown off Ms. Stevenson’s arm, Ms. Harris’ cell phone was damaged. At the time Ms. Stevenson reacted, she was so angry that she did not recognize that it was Ms. Harris, her friend, who had reached to touch her. Subsequently, Ms. Stevenson learned that she had damaged Ms. Harris’ cell phone, and has since replaced it. Ms. Stevenson exited the bus driver lounge into the parking lot. Ms. Black, another school bus driver and friend of Ms. Stevenson, saw her in the parking lot. Ms. Stevenson continued a profane tirade that no one cared about her, and how she had been left at the hospital. Ms. Black attempted to calm her friend down, and Ms. Stevenson subsequently left the bus depot in order to pick up her daughter from daycare. During Ms. Stevenson’s outburst, Ms. Aney was at the hospital looking for Ms. Stevenson. When she could not find Ms. Stevenson, Ms. Aney called the dispatch office and spoke with Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at the bus depot and that Ms. Aney needed to return immediately. By the time that Ms. Aney returned, approximately 15 to 20 minutes later, Ms. Stevenson had already left the premises. The School District did not contact any law enforcement agency concerning Ms. Stevenson’s outburst and threats made against Ms. Aney on April 25, 2014. The School District began an investigation into Ms. Stevenson’s conduct at the school bus depot. The investigator, Mr. Andrew Brown, learned from one of Ms. Stevenson’s supervisors that Ms. Stevenson had been involved in a prior incident on January 30, 2014. Mr. Brown was provided a video taken on the bus driven by Ms. Stevenson on January 30, 2014. This January 30, 2014, video, with its audio, shows Ms. Stevenson losing her temper and verbally berating a third-grader because Ms. Stevenson perceived that the third-grader had been disrespectful to her. Further, the video shows Ms. Stevenson yelling at all of the students and warning them about being disrespectful to her. Following her verbal tirade, Ms. Stevenson turned down the bus radio and called the school bus dispatch on her cell phone while driving the bus. Ms. Stevenson falsely reported that she had tried to call the dispatch on her bus radio, and that she wanted dispatch to inform the school that the identified student had been disrespectful to her and that she would be speaking to the student’s mother. Finally, the video shows that at the student’s stop, Ms. Stevenson informed the student’s mother that the child had been disrespectful, rolling her eyes and had “jumped at her.” The video did not support Ms. Stevenson’s characterization of the third-grader’s actions as “jump[ing] at her.” After a parent complaint, the School District reviewed the video and suspended Ms. Stevenson as a school bus driver for three days. Ms. Stevenson’s evaluation indicated that Ms. Stevenson was suspended for using the cell phone while driving. Ms. Stevenson testified that her suspension also was the result of her behavior on the bus in addition to the cell phone use. Certainly, the School District in suspending Ms. Stevenson took into account her inexcusable verbal berating of a third grader on the bus when it suspended her. The fact that Ms. Stevenson used a cell phone while driving the school bus could only have been learned by watching the video. As stated earlier, the video shows Ms. Stevenson’s inappropriate behavior directed to the student, and her inappropriate driving while talking on the cell phone. Consequently, the undersigned finds that the School District was aware of Ms. Stevenson’s outburst on the school bus on January 30, 2014, when it suspended her for three days. Finally, it is agreed by the parties that Ms. Stevenson was directed by her supervisor, after the January 30, 2014, incident, to act courteously and cooperatively in the future. Ms. Stevenson’s unrebutted testimony shows that in 2013 and 2014 she was a victim of domestic violence, and had in place a domestic violence injunction against her husband. Ms. Stevenson explained that her difficult situation spilled over into her work life causing her anger and anxiety. Prior to her suspension, Ms. Stevenson sought help with Employee Assistance Program counseling concerning her anxiety. However, she has not been able to consistently continue with the counseling based on financial difficulties. During this past school year, Ms. Stevenson has driven a bus for a private transportation company that provides bus services for charter schools without any further incident. She has expressed remorse for her actions, and stated a desire to return as a Lee County School District school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The School Board established “just cause” for disciplining Ms. Stevenson’s employment based on the finding that she is guilty of “misconduct in office,” for violating article 7.13, and School Board Policies 2.02, 4.09, and 5.02; Ms. Stevenson be suspended without pay from July 1, 2014 until the beginning of the January 2015 term; and As a condition of continued employment, Ms. Stevenson successfully complete an Employee Assistance Program concerning anger and stress management, and successfully complete training concerning effective communication. DONE AND ENTERED this 29th day of December, 2014, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2014.
The Issue The issue is whether Respondent's employment should be terminated by Petitioner.
Findings Of Fact At all times material to this proceeding, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Volusia County, Florida. Respondent, Tamika Whitaker, began working as a bus driver for the School Board in 2002. At all times relevant to the allegations in the Superintendent's Statement of Charges, Respondent was assigned to the bus route of Riverview Learning Center. In order to be employed as a school bus operator, Respondent had to undergo sixty hours of initial training, consisting of thirty-two hours of classroom training reviewing rules, policies, and procedures, and twenty-eight hours of training on the school bus. Respondent was also required to obtain a Class B commercial driver's license (CDL) with a passenger endorsement. This allows the bus operator to drive a bus that is approximately 40 feet long and 10 feet wide, weighs 24,000 to 26,000 pounds unloaded, and can carry approximately 77 passengers. School bus operators are required to know and abide by all federal and state laws, rules, and regulations pertaining to operating school buses, as well as all policies, practices, and procedures of the School Board. During her initial training, Respondent was provided a copy of the School Board's Student Transportation Services Procedural Manual and was trained regarding the procedures therein. Each time a change is made to the Manual, bus drivers are provided copies of the changes. In addition to her initial training, pursuant to Florida Department of Education rules, Respondent was required to complete eight hours of recertification training every year. The recertification training is designed to educate transportation staff on any new laws, rules, and regulations, and on policies, practices, and procedures of the School Board. At the March 2010 recertification training, changes to U.S. Department of Transportation's interpretation of federal regulations were discussed. Under the revised interpretation, texting while driving would be prohibited.1/ On May 4, 2010, Respondent's afternoon bus route was completed approximately 40 minutes later than usual. Because such a delay is unusual, the School Board investigated the delay pursuant to standard practices. This included review of the GPS report for the bus Respondent was driving, review of the video for the bus, and inquiry to the Student Transportation Services dispatch office. Greg Akin is the Director of Student Transportation Services for the School Board. He asked Patricia Rush, lead driver at the New Smyrna terminal, to review bus video of Respondent from her May 4, 2010, route to determine the cause for Respondent's delay. By accident, Ms. Rush watched a video from a different day, and saw actions of Respondent which Ms. Rush determined to be unsafe. Specifically, Ms. Rush described what she saw, "driving with no hands . . . driving with her elbows . . . using the cellular telephone . . . drinking out of a mug. There were students on board. I was just kind of shocked that she was doing that." Ms. Rush's concern regarding the use of the mug was that it was a large mug and appeared to Ms. Rush to block Respondent's face when she raised it to drink out of it while driving. Ms. Rush reported what she saw on the video to William Ralys, an area manager, who asked her to continue to review bus videos of Respondent and to archive what she saw. Ms. Rush reviewed the bus video of Respondent's routes on May 4, 2010, and observed Respondent pull over for a long period of time and use her cellular telephone. She also viewed the bus video of Respondent's routes on May 6, 2010, and observed Respondent using her cellular telephone while operating the bus with students on board. An internal investigation was conducted during which bus videos of several days of Respondent's routes were viewed by Mr. Akin, Assistant Director of Student Transportation Services Chip Kent, and by Mr. Ralys. Mr. Akin wrote a detailed chronology of what he observed Respondent doing while operating the school bus on April 30, 2010; May 3, 2010; and May 4, 2010. Bus video of Respondent's routes shows Respondent placing a call and talking on her cellular telephone while operating a school bus at approximately 4:00 p.m. on May 3, 2010. Respondent's cellular telephone records show she sent and received numerous text messages during her routes on that date.2/ Bus video of May 4, 2010 shows Respondent checking her cellular telephone, placing a call, and talking on the phone while operating the school bus. At approximately 3:32 p.m., the video shows Respondent talking on the phone regarding a personal matter. She told the person to whom she was speaking to "hold on, let me turn, hold on." Respondent then lowered her cellular telephone to her lap and waved out the window. Respondent then resumed her telephone conversation after turning. Also on May 4, 2010, the bus video of Respondent shows, and Respondent acknowledged, that she spent approximately 42 minutes stopped at a location, the library, which is not part of her route assignment. During this time, she again used her cell phone for talking and messaging for personal reasons. Students were not on the bus at this time, but Respondent was still "on the clock." Respondent's cellular telephone records for May 4, 2010, show that she sent and received numerous text messages while on her routes. Bus video for May 6, 2010, and her cellular telephone records, show Respondent using her cellular telephone to read and type text messages while operating the school bus with students on board, as well as to make phone calls. Bus video shows Respondent drinking from a large pink mug or container on multiple days while operating the school bus. Respondent has used this large mug for seven years and had not previously been disciplined for using it, nor had anyone told her to stop using it while driving her routes. Students on Respondent's bus were aware of her text messaging and complained to her about it. The bus video of May 6, 2010, shows Respondent holding her cellular phone in one hand while driving students. She appears to be reading incoming texts and texting while driving. She then pulls over to text message, at which time the students complain. One student said "We gotta pull over so you can text." He also said, "Oh, this is great, and "Drop me off . . . I can walk faster." Another student said to Respondent, "You can text and drive at the same time, I don't mind." The first student then offered to text message for Respondent, but she retorted, "You can't spell." Respondent presented evidence of another School Board employee, Sandra McDavid, a bus attendant, who was disciplined for not properly securing seat belts to wheel chair students and for talking on a cellular phone while operating the wheel chair lift while loading a wheel chair student. Ms. McDavid was suspended without pay for 20 days. Respondent argues that Ms. McDavid's case is similar to Respondent's, yet Respondent is receiving much harsher disciplinary action.3/ In a letter dated May 7, 2010, the Assistant Director of Student Transportation Services notified Respondent that her driving duties were temporarily suspended pending the outcome of an investigation. On June 17, 2010, Mr. Akin sent a letter to Respondent notifying her that she would be recommended for termination from employment. The letter was accompanied with the Statement of Charges signed by Superintendent Smith. At hearing, Mr. Akin noted that Respondent's case "is the first time [he] ever [saw] a case that involves this many issues on repeated days." On June 20, 2010, Respondent requested a hearing on her termination which gave rise to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Volusia County School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 3rd day of December, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of December, 2010.
The Issue Whether Petitioners, Renaissance Charter School, Inc., and Renaissance Charter School at Tradition, can be required by the St. Lucie County School Board ("School Board") to offer regular school busing to all eligible charter school students residing more than two miles from the charter school. Whether Petitioner, Renaissance Charter School at Tradition, breached its contract with the School Board by not providing transportation to students in accord with the parties' charter school contract and Florida Statutes. Whether School Board Policies 3.90 and 8.31 constitute an invalid exercise of delegated legislative authority. Whether the School Board has charter busing policies which amount to illegal, unadopted rules under chapter 120, Florida Statutes (2014).
Findings Of Fact The Parties Renaissance Charter School, Inc., is a not-for-profit Florida corporation. Renaissance Charter School, Inc., currently owns and operates two charter schools in St. Lucie County: Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. The School Board is the "sponsor" of Renaissance Charter School at Tradition within the meaning of the charter school statute, section 1002.33. The School Board's Approval of Renaissance Charter School at Tradition's Charter Application and Charter Contract On August 1, 2012, a charter school application was submitted to the School Board by Renaissance Charter School, Inc., on behalf of Renaissance Charter School at Tradition. During the charter application and approval process, the School Board consistently contended that charter schools in St. Lucie County are required by law to offer regular school busing to all eligible students residing more than two miles from their charter school.1/ On September 17, 2012, the School Board's Charter School Evaluation Team recommended approval of the Renaissance Charter School at Tradition charter school application, subject to the charter school providing "a viable transportation plan that meets statutory requirements once a school site has been finalized." On May 14, 2013, the School Board, at a regular board meeting, unanimously approved its charter contract with Renaissance Charter School, Inc., for Renaissance Charter School at Tradition. The Renaissance Charter School at Tradition charter contract became effective upon approval by the School Board at its May 14, 2013, meeting. The term of the charter contract is five years, commencing on the first day of the 2013-2014 school year, and ending on June 30, 2018. The School Board and Renaissance Charter School at Tradition have a valid and binding charter school contract that is still in full force and effect. Applicable Transportation Provisions of Renaissance Charter School at Tradition's Charter Contract Section 6 of the charter contract between the School Board and Renaissance Charter School at Tradition, which governs student transportation, provides as follows: SECTION 6: TRANSPORTATION Cooperation Between Sponsor and School: The School shall provide transportation to the School's students consistent with the requirements of Part I.E. of Chapter 1006, and Section 1012.45, F.S. The School may contract with the Sponsor to provide transportation service. Reasonable Distance: Transportation will not be a barrier to equal access for all students residing within the District, and the School shall provide transportation to all students residing in the District subject to the limitations in this Section 6.B. Students residing within two miles of the school will be expected to furnish their own transportation, except that certain students, as specified in Section 1006.21, F.S., for example students with disabilities and elementary grade students who are subject to specified hazardous walking conditions, must be provided transportation, regardless of the distance from the school. For students who are geographically isolated, or who are unable to be transported on a school bus due to disabilities, the School will offer reimbursement to eligible parents residing within the District. This parental reimbursement shall be equivalent to the monies provided by the Sponsor to the School for transportation of the student. At the time of student application for enrollment, the School shall be responsible for informing parents of the transportation options available, including the reimbursement amount available in lieu of provided transportation to qualifying students. Compliance with Safety Requirements: The School shall demonstrate compliance with all applicable transportation safety requirements. Unless it contracts with the Sponsor for the provision of student transportation, the School is required to ensure that each school bus transporting the School's students meets applicable federal motor vehicle safety standards and other specifications. The School agrees to monitor the status of the commercial drivers' licenses of each school bus driver employed or hired by the School (hereafter "School Bus Drivers") unless it contracts with Sponsor to provide such services. The School will provide the Sponsor, via the Charter Schools Support Department, an updated list each quarter of all School Bus Drivers providing commercial driver's license numbers, current license status and license expiration dates. Fees: The School may not charge a fee for transportation to which the student is entitled pursuant to state law. The School shall reimburse parents for parent-provided transportation costs if the student is legally entitled to transportation. Private Transportation Agreement: In the event the School will be contracting with a third party to provide transportation to its students, the School shall provide a copy of the transportation contract to the Sponsor at least sixty (60) days prior to the initial day of classes. Reimbursement for School Funded Transportation: The rate of reimbursement to the School by the Sponsor for transportation will be equivalent to the reimbursement rate provided by the State of Florida for all eligible transported students. Section 1 B) 4) of the charter contract further provides: 4) Statutory Requirements: The Parties will comply with Section 1002.33, F.S., and any regulations adopted by the State Board of Education or other state agency, or amendments thereto, pertaining to charter schools, and all applicable federal, state and local laws pertaining to civil rights and student health, safety and welfare. If any conflict exists between the provisions of the approved application or this Charter and any specific provision of law, then the provisions of the law shall prevail. The School shall be bound by amendments to applicable statutes, rules, and regulation, as any such amendments take effect. Unless specifically incorporated herein, the policies of the Sponsor do not apply to the School. However, if the School is statutorily required to have a policy and does not, the Sponsor's policy shall be deemed to apply. Students of Renaissance Charter School at Tradition and the School's Transportation Policy For a student to attend Renaissance Charter School at Tradition, their parents must apply during an open enrollment period, and a lottery system is used to determine who may attend. Parents whose child is selected through the lottery to attend Renaissance Charter School at Tradition are given a certain number of days to accept or decline the seat. Then the process starts over again until all seats are filled or there are no other students on the list. Renaissance Charter School at Tradition opened for the 2013-2014 school year as a K-6 school with 695 enrolled students. Projected enrollment for the 2013-2014 school year was 661 students. However, before the 2013-2014 school year began, projected enrollment had increased to 745 students. Renaissance Charter School at Tradition opened for the 2014-2015 school year as a K-7 school with 890 enrolled students and an enrollment cap of 945 students. For the 2015-2016 school year, Renaissance Charter School at Tradition plans to open as a K-8 school with projected enrollment of 1,075 students. For the 2016-2017 school year, Renaissance Charter School at Tradition plans to open as a K-8 school at maximum capacity of 1,145 enrolled students. The only "A" graded schools in St. Lucie County, Florida, for the 2013-2014 school year were Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. There is a waiting list for grades K-3 at Renaissance Charter School at Tradition. Parents of students enrolled at Renaissance Charter School at Tradition recognize that Renaissance Charter School at Tradition provides their children with a unique educational opportunity. Parents of students enrolled at Renaissance Charter School at Tradition recognize that the decision to enroll their children at Renaissance Charter School at Tradition is a personal choice and not a privilege. Parents of students enrolled at Renaissance Charter School at Tradition are active partners in the education of their children. Renaissance Charter School at Tradition does not provide regular school busing to its students who reside more than two miles from the charter school. Renaissance Charter School at Tradition re-evaluates its transportation policies on a yearly basis. Parents of students are informed that Renaissance Charter School at Tradition does not offer regular school busing in informational meetings before they apply for their child to attend the school. Parents of students enrolled at Renaissance Charter School at Tradition sign a "Parent Obligation Form," contractually obligating themselves "[t]o provide transportation to and from the school for my child." Parents are required to sign the "Parent Obligation Form" every year as part of the enrollment process. The transportation policy of Renaissance Charter School at Tradition, which is given to all parents upon enrollment, apprises parents that the school does not offer regular school busing to students, but that the school agrees to provide "transportation or an equivalent reimbursement" to students in certain legally-defined circumstances. The transportation policy of Renaissance Charter School at Tradition provides as follows: Student Transportation Policy Renaissance Charter School at Tradition's [sic], is and always has been, fully committed to ensuring that transportation will not be a barrier to equal access for all students residing within the District. To date, there are more students attending our newly-opened charter school than was projected for our first year. Although our school does not presently offer busing as a means of school transportation, we are in the process of helping put together parent carpools for those parents who want their children to share rides to and from school. Moreover, transportation, or an equivalent reimbursement, will be provided to any student who falls under any of the following categories [taken from Florida State Statute 1006.21]: Any student in grades K-8 who does not otherwise have access to an adequate educational facility or opportunity. Any student in grades K-6 who are subjected to a hazardous walking condition as defined in s. 1006.23 while en route to or from school. Any student in grades K-8 who have a documented transportation need in their IEP. Any student in grades K-8 who are pregnant, student parents, and/or the children of these students if a teenage parent program is presented at the school. If you feel your child falls within one of the categories listed above, please notify the front office and we will work with you on a case-by-case basis. The School Board rejected the transportation policy of Renaissance Charter School at Tradition because it does not provide for the regular school busing of all students residing more than two miles from the charter school. Renaissance Charter School at Tradition's failure to provide regular bus transportation to all students residing more than two miles from the charter school does not constitute a barrier to equal access to all students. At the hearing, no credible and persuasive evidence was presented that any students lack equal access to an adequate educational facility or opportunity. No evidence was presented that any students are subject to hazardous walking conditions while en route to or from the charter school. There is one student who enrolled on January 20, 2015, who has a transportation need documented in their individual education plan, but the child's parent has chosen to provide transportation. No evidence was presented of any students who are pregnant or who have given birth to any children. Renaissance Charter School at Tradition opens at 6:00 a.m. and closes at 6:00 p.m. There are before-and-after- care private buses that take students off-site to other organizations, such as to karate and the Boys and Girls Clubs. Renaissance Charter School at Tradition also encourages parents' use of carpooling their children to and from school. The School Board's position is that carpooling is not a viable transportation option for the charter school. At Renaissance Charter School at Tradition, one parent has decided to run a private busing service, but no other parents have chosen to use the services of that private bus.2/ The Charter Contract and Transportation Policy Do Not Require Petitioners to Transport by Regular School Bus All Students Residing More Than Two Miles From the Charter School The parties' dispute centers on whether the School Board can require Renaissance Charter School at Tradition to offer regular school bus transportation, to and from the school, for all students residing more than two miles from the school. The interests of Petitioners are directly and substantially affected by the School Board's attempt to require that Petitioners transport by regular school bus all students residing more than two miles from the charter school. The parties unsuccessfully mediated their dispute before the Florida Department of Education. The persuasive and credible evidence adduced at hearing demonstrates that Renaissance Charter School at Tradition has not breached its charter contract with the School Board by not providing regular school busing to all students residing more than two miles from the charter school. The charter school contract between the School Board and Renaissance Charter School at Tradition does not require Renaissance Charter School at Tradition to provide regular school busing to all students residing more than two miles from the charter school.3/ Renaissance Charter School at Tradition's transportation policy is consistent with its charter contract with the School Board. The School Board's Inequitable Treatment of Charter Schools The persuasive and credible evidence adduced at hearing demonstrates that the School Board's treatment of Petitioners is inequitable. The School Board has a "no transportation zone," which geographically encompasses approximately one-third of the county. Students of traditional public schools residing in the "no transportation zone" are not provided regular school bus transportation to and from school. The School Board also has a "limited transportation zone." Students of traditional public schools residing in the "limited transportation zone" are provided regular school bus transportation, but only if they attend a school located within the "limited transportation zone." The "no transportation zone" and "limited transportation zone" encompass approximately one-half of St. Lucie County. At the hearing, the School Board conceded that it has different policies for the transportation of traditional public school students and students at magnet schools and attractor schools. The School Board encourages the use of carpools for students of traditional public schools. The School Board's Alleged Unadopted Policy The School Board, in paragraph 20 of its counter- petition filed in Case No. 14-3267, specifically states: "The School District's adopted policy is that students who live more than two miles from their assigned school shall be provided school bus transportation." (emphasis added). The persuasive and credible evidence adduced at hearing demonstrates that the School Board interprets Florida law and its adopted School Board Policies 3.90 and 8.31 to require that all existing and future charter schools within the county provide regular school bus transportation for all students residing more than two miles from the charter school. The persuasive and credible evidence adduced at hearing demonstrates that the School Board does not have an unadopted policy that all charter schools within the county must provide regular school busing to all students residing more than two miles from their charter school. The School Board's Adopted Policies The School Board has two adopted policies, School Board Policy 3.90 (dealing with charter schools) and School Board Policy 8.31 (dealing with student transportation). The interests of Petitioner are directly and substantially affected by these policies.4/ Both School Board Policies 3.90 and 8.31 were properly noticed pursuant to chapter 120, Florida Statutes. Neither School Board Policy 3.90 nor 8.31 is specifically incorporated into the charter agreement between the School Board and Renaissance Charter School at Tradition. Moreover, according to the School Board, School Board Policy 8.31 applies only in the absence of a viable charter school transportation policy. The persuasive and credible evidence adduced at hearing fails to demonstrate that the School Board and Renaissance Charter School at Tradition mutually agreed that School Board Policy 3.90, or 8.31, apply to the charter school.
The Issue The issue in this case is whether there is just cause to terminate Respondent from his employment as a bus driver.
Findings Of Fact Respondent has been employed by Petitioner as a bus driver for approximately six years. The terms and conditions of Respondent's employment are controlled by the Official Agreement Between The Seminole County School Bus Drivers' Association, Inc., and The School Board Of Seminole County Sanford, Florida (the "collective bargaining agreement" or "CBA"). Under the collective bargaining agreement, Respondent can not be disciplined, including reprimand, suspension, or termination, except for just cause. Mr. Ricky Dale Saunders is one of several area managers employed by Petitioner. In 1995, Mr. Saunders was Respondent's immediate supervisor. Mr. Saunders scheduled a meeting with Respondent for February 1, 1995. The purpose of the meeting was to discuss complaints by parents concerning Respondent's treatment of students on his school bus. Respondent attended the meeting with two union representatives. All of those in attendance were seated around a conference table. Before Mr. Saunders could discuss the parental complaints, Respondent complained that Mr. John Nault, another bus driver, had moved Respondent's bus in the school compound the day before. Mr. Saunders stated that he had authorized Mr. Nault to move Respondent's bus. Respondent accused Mr. Saunders of lying and became angry. Respondent stood up, leaned forward, and told Mr. Saunders that he would ". . . kick his mother-fucking ass." In March 1995, Petitioner suspended Respondent for 5-days without pay. Petitioner initially proposed a 10-day suspension, but agreed to a 5-day suspension after Respondent's union representatives protested that Respondent had no prior discipline that warranted a 10-day suspension. Petitioner reassigned Respondent to Lake Brantley High School and issued a directive to Respondent. The directive stated that Respondent's conduct on February 1, 1995, was unacceptable and that Petitioner would seek to terminate Respondent if Respondent ever engaged in such conduct again. In the 18 months between March 1995, and September 1996, Respondent had satisfactory evaluations. He encountered no problems on the job. Respondent had a number of problems with students on his bus during the 1996-1997 school year. During the first two weeks of school, Respondent met with Mr. Thomas Murphy, Assistant Principal of Lake Brantley High School, to request assistance in resolving the discipline problems on Respondent's bus. Mr. Murphy assigned Mr. Randolph Harvey, the school security officer, to assist Respondent in preparing a seating chart for Respondent's bus. Mr. Harvey and Respondent went to the bus and began the seating chart. Mr. Harvey and Respondent obtained the names of approximately 10 students. The names of the remaining students were not obtained because the students had to go to class. Mr. Harvey stated that he would continue to assist Respondent each day until the seating chart was complete. However, Mr. Harvey never returned to complete the seating chart. Respondent continued to encounter problems on his bus and continued to seek the assistance of Mr. Harvey. Mr. Harvey did not assist Respondent in completing the seating chart. Mr. Harvey periodically took disruptive students off the bus and spoke to them about their behavior. He then released them to go to class. Mr. Harvey never provided Respondent with the names of the disruptive students or assisted Respondent in obtaining their names. On September 17, 1996, during the ordinary course of his job duties, Respondent transported students in his school bus to Lake Brantley High School. At about 7:00 a.m., a disturbance occurred among three students. Respondent drove the bus a short distance to a place where he could stop the bus safely. Respondent stopped the disturbance and, by radio, asked for assistance. The dispatcher told Respondent that someone would meet Respondent at the bus ramp. When Respondent arrived in his bus at the bus ramp, Mr. Harvey met Respondent at the ramp. Mr. Harvey talked with the disruptive students and ushered them off the bus but did not provide any of their names to Respondent. The disruptive students were taken to Mr. Murphy's office. Mr. Murphy discussed the incident with the students out of the presence of Respondent. Mr. Murphy determined that no fight occurred on the bus and sent the students to class. On the afternoon of September 17, several students on Respondent's bus became unruly. They were upset that some students were taken to Mr. Murphy's office. They used inappropriate language and made inappropriate statements. On the morning of September 18, 1996, a disturbance occurred on Respondent's bus for the third time in 72 hours. Respondent, by radio, requested assistance from Ms. Josephine DeLude, an area manager for Petitioner and Respondent's supervisor. Respondent reported that three students were rude, called him the "F" word, and were out of their seats and screaming. He asked Ms. DeLude for assistance in getting the names of the disruptive students. Ms. DeLude met Respondent as he drove his bus into the bus ramp area. At the direction of Ms. DeLude, Respondent drove the bus to the front of the school. Respondent got out of his bus and waited at the front of the school while Ms. DeLude went to find someone to assist Respondent in getting the names of the disruptive students. On her way, Ms. DeLude met Mr. Harvey coming out of the school. Ms. DeLude asked Mr. Harvey for his help in obtaining the names of the students. Mr. Harvey said, "Oh no, not him again. I've been on that bus every day since school started. He doesn't know how to handle those students." 1/ Mr. Harvey then turned back into the school for the assistance of Mr. Murphy. Ms. DeLude instructed Respondent to release all of the students from the bus except the three disruptive students. By the time the other students were off the bus, Mr. Harvey returned with Mr. Murphy. Mr. Harvey said to Mr. Murphy, "He's always having problems, he does . . . he has an attitude." Ms. DeLude turned to Mr. Harvey and asked, "If he's always having problems, why hasn't one student been removed off the bus?" Ms. DeLude was standing between Respondent and Mr. Murphy. Mr. Murphy said, "We've had problems with him, the kids complain, he has an attitude, he has an attitude towards the kids. . . . We have had trouble since day one with this bus. The driver has an attitude towards the kids." Mr. Murphy then requested Respondent to provide the names of the disruptive students. Respondent became angry. He yelled at Mr. Murphy, calling him an "idiot", "stupid", and an "asshole." Mr. Murphy said, "See, this is the attitude I'm talking about." Respondent became out of control. He stepped around Ms. DeLude and stood within a few inches of Mr. Murphy's face. Respondent became very red in the face. He pointed his finger in Mr. Murphy's face, and repeatedly yelled that Mr. Murphy was an "idiot" and "stupid." Mr. Murphy told Respondent to get his finger out of his face, and Respondent ". . . stood back a ways." Ms. DeLude stepped between Respondent and Mr. Murphy to separate the two. Respondent yelled that he was going to "kick" Mr. Murphy's "ass." Mr. Murphy said, "I'll be happy to meet with you somewhere to see who can kick whose ass." Mr. Murphy spoke to Respondent in a normal conversational tone and did not yell at Respondent. Mr. Murphy did not provoke Respondent prior to his quoted statement in the preceding paragraph. Ms. DeLude pushed Respondent toward his school bus. Respondent continued to scream over Ms. DeLude's shoulder that Mr. Murphy was an "idiot." Mr. Murphy directed Respondent not to return to Lake Brantley High School. Mr. Murphy went inside the school. By letter dated September 23, 1996, Petitioner notified Respondent of its intent to terminate his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from his employment as a bus driver. DONE AND ENTERED this 24th day of July, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1997.
Findings Of Fact By Stipulation of Fact, the parties agreed, and it is found, that: Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator. Bus aides are only assigned to buses which transport students participating in the exceptional student education program. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole." On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1990. COPIES FURNISHED: Maria D. Korn, Esquire Kunkel & Miller 290 Cocoanut Avenue SARASOTA, Florida 34236 Herbert W. AbeIl, Esquire 3224 Markridge Rd. SARASOTA, Florida 34231 Janet Shrader 22 Goodrich Street SARASOTA, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237
The Issue Whether Respondent's employment with petitioner should be terminated pursuant to Section 231.36, Florida Statutes, and School Board Policy No. 2.25, as set forth in Notice of Charges, dated June 12, 1979.
Findings Of Fact Respondent Vernie M. Smith commenced employment with Petitioner School Board of Leon County in 1967 as a secretary and bookkeeper in the Transportation and Maintenance Office. She served in this capacity for a period of approximately eighteen months and then obtained private employment. In 1969 she returned to the Transportation Department as a secretary and has remained there continuously since that time, except for a six-month period in 1973, when she served as a secretary at the Leonard Wesson School, Tallahassee, Florida. Since 1975, Respondent has been employed in the capacity of Routes and Operations Supervisor, which involves supervision and coordination of the activities of school bus operators and scheduling bus routes. (Testimony of Respondent, Petitioner's Exhibit 1) During the period 1974 until March 1978, Respondent's immediate supervisor was Frank Barber, Director of Transportation. Commencing in 1975, Barber's supervisor was Cecil Hartsfield, Assistant Superintendent of Operations. During the first three years of Barber's tenure, he felt that Respondent did a good job and gave her exceptionally high performance evaluations. She received commendatory letters from school officials, including the Superintendent, concerning her work during this period. However, Barber experienced difficulties with Hartsfield during the school year 1977-78 which he partially attributed to disloyalty on the part of Respondent in providing misinformation concerning him to Hartsfield. No evidence was presented at the hearing to support Barber's perception of Respondent's disloyalty. (Testimony of Barber, Respondent, Petitioner's Exhibit 10, Respondent's Exhibits 4-6) Upon Barber's departure in the spring of 1978, Respondent served as the acting Director of Transportation for about three months. She considered applying for the position on a permanent basis but refrained from doing so after Hartsfield advised her that it was doubtful if the School Board would approve her appointment. The job required a college degree and Respondent had only an eleventh grade education. In June 1978, Conway McGee was hired as Director of Transportation. In August, McGee learned that Respondent did not possess a state chauffeur's license although such a license was a requirement for the incumbent of her position. Respondent had an operator's license, but told McGee that her poor vision in one eye precluded her from obtaining a chauffeur's license. McGee took no action to verify this statement or to otherwise require Respondent to obtain a chauffeur's license. (Testimony of McGee, Respondent, Petitioner's Exhibit 1) In February 1979, Respondent was obliged to complete a quarterly state report on operations of the county bus system. The preparation of such reports normally required that she work overtime for which she was not paid, but which could be taken as compensatory time during regular work days. During the period, she also was given an assignment by McGee to plan an extra bus route involving a large number of children. Although McGee had authorized compensatory time, if necessary, for such purposes, he later reviewed Respondent's time records and instructed the department bookkeeper to remove credit for eighteen and one-half hours of compensatory time. McGee had not checked Respondent's actual working hours, but was of the opinion that such time was excessive. He did not inform Respondent of his action in this regard and she later discovered it When she checked her leave record. (Testimony of Respondent, McGee, Driggers) Respondent went on vacation in March 1979. While she was absent, a parent called the Transportation Office and stated that she had been attempting to have a school bus stop to pick up her child since the fall of 1978, but that her request had been denied. McGee reviewed the particular route and decided that Respondent should have permitted the bus to pick up the child at an earlier date. He also noted that the routing form did not contain the name of the current driver and should have been updated in this respect. However, the request previously had been denied because there had been no place at the child's home for the bus to turn around and it was within the distance which required a student to walk to the bus stop. (Testimony of McGee, Driggers, Petitioner's Exhibit 7) Respondent's work hours were 6:00 A.M. to 2:30 P.M. On March 26, 1979, Respondent was absent from work due to illness. McGee had previously instructed her that in such instances she was to call Marjorie Conway, a coworker, in order that that employee could take over Respondent's duties at 6:00 A.M. He also had told Respondent that if she could not reach Mrs. Conway, she was to advise him of the situation. On March 26, Respondent was unaware that McGee had moved his residence. She was unable to reach him by telephone, and therefore called Reubin Brooks, the garage supervisor, at 5:00 A.M. and asked him to advise McGee of her absence. Brooks did so. Respondent had not called Mrs. Conway because she felt that there was insufficient time for her to arrive at the office from her home at Wakulla, Florida. On April 9, 1979, McGee placed a written reprimand of Respondent in her personnel file for failing to call him directly on March 26. Respondent believed that the reprimand was unjust and attempted to have it removed from her file by informal requests to school board authorities. These efforts did not succeed and therefore she instituted grievance procedures with the assistance of an attorney. After a hearing before Hartsfield, it was determined by him that the reprimand was appropriate, but that it would be removed from her personnel file in one year. During the same hearing, Respondent protested the disallowance of her compensatory time. Hartsfield reversed McGee and restored credit for the eighteen and one-half hours that McGee had previously disapproved. (Testimony of McGee, Hartsfield, Respondent, Petitioner's Exhibit 4) On March 29, 1979, the assistant principal of Fairview Middle School called Respondent and asked her to see if McGee could attend a meeting that he was going to have on April 3 with some parents who had made a complaint about a bus driver. He planned to ascertain the parents' problem at the meeting before discussing the matter with the particular bus driver. Respondent noted the meeting on McGee's calendar. At the meeting, the parents became upset because the driver was not there, and McGee felt that Respondent should have notified the driver to be present. (Testimony of Carter, Respondent, McGee, Respondent's Exhibit 3) In the fall of 1978, McGee had installed a counter in the department office to restrict access of the bus drivers to the area in which the administrative employees performed their duties. Nevertheless, a coffee pot was located on the administrative side of the counter and the drivers frequently entered the area to obtain coffee if the clerical employees were not present or busy. Several drivers complained that another driver, Helen Smith, frequently was permitted to remain in the administrative area. McGee asked Respondent on several occasions to see that all drivers remained behind the counter. However, Hartsfield had told one of the administrative employees that the drivers could come behind the counter for coffee or to use the bathroom or telephone. (Testimony of McGee, Respondent, Driggers, Conway) On one occasion during the school year, weight restrictions placed on bridges on North Meridian Road required a study as to possible change of bus routes and drivers. McGee discussed the matter with Respondent as to changing the route of a certain driver. She advised him that prior to his tenure, this particular driver had been threatened with a weapon by a parent and that she had therefore taken him off the bus route. McGee agreed not to change the driver, but claimed at the hearing that Respondent had said it would be too much work to make so many changes. Respondent denied making such a statement at the hearing. On another occasion during the school year, Respondent forgot to assign a driver to pick up a group of school children. (Testimony of McGee, Driggers, Respondent) On April 11, 1979, a group of the bus drivers requested a meeting with Hartsfield to hear their complaints. At the meeting, attended also by McGee, the drivers were concerned about statements made by others attributed to McGee to the effect that the drivers would be fired for pulling off a road to stop at a store or for running out of gas on their routes. Although these statements had not been made to anyone by McGee, both he and Hartsfield were of the opinion that the drivers had said that Respondent had quoted McGee in those respects. Actually, however, the statements were made by other personnel of the department and not the Respondent. At the meeting, other complaints were raised against McGee by certain of the drivers concerning their working conditions and his lack of support regarding problems with other school officials. Some of these drivers complained about McGee's unfair censure of them as a result of bus accidents. (Testimony of McGee, Hartsfield, Gunn, Harvey, Harley, Tinnell, Taylor, Respondent, Petitioner's Exhibit 5) At about 5:00 P.M. on April 19, 1979, McGee found that his private automobile which was parked in the department compound would not start. He was due to attend a meeting the next day and asked his garage supervisor, Reubin Brooks, if he would check the car the following day. It had been a long- standing practice for Brooks to assist departmental employees by performing minor repairs to their automobiles in such situations. Brooks always arrived an hour or so early for work and did not take a lunch hour or claim overtime for such period. The next day, Brooks checked the fan belt of McGee's automobile and applied jumper cables and let the motor run about five minutes. Since the compound parking area was being paved, he drove the car to the shop and ordered a new battery which he installed that day. He estimated that the entire work he performed on McGee's car took about ten minutes. Although there were dead-lined buses in his garage on April 20, this was not unusual since buses were dead- lined every day in the department and the time spent on McGee's car had not interfered with his regular work. Respondent observed Brooks working on the vehicle outside her office and thereupon secured an office camera and took photos of the scene through a window. At a subsequent meeting with Hartsfield on May 8 at which Respondent had complained about McGee's "call in" requirements, she showed Hartsfield the photographs and indicated that the car had been worked on during "company time." Hartsfield told McGee about the photographs several days thereafter. Respondent took the photographs on "impulse" because she thought such activity was a problem in the department and because she felt that her job might be in jeopardy at that time. (Testimony of McGee, Brooks, Ferguson, Hartsfield, Respondent, Driggers, Conway, Respondent's Exhibit 7) Respondent's annual performance evaluation for the period ending April 30, 1979, was completed and signed by McGee on May 5, 1979. The evaluation form provided for the entry of ratings in ten different categories as either "subnormal; frequent and repeated errors", "normal; seldom repeats errors", or "exceptionally high; rarely makes errors." Respondent was rated "subnormal" in six of the categories and "normal" in the remaining four categories of quality of work, cooperativeness, personal appearance, and tardiness. The "subnormal" ratings were for quantity of work, work attitude, reliability, health, absence, and general evaluation. As to the reliability category, McGee noted that Respondent had either been off or worked short days on over 57 work days, and as to the health category, he commented that she had lost 17 days due to illness. He also made a general comment that Respondent was capable of doing more and better work and that she was in "somewhat of a rutt [sic]; having worked in this department for many years." Respondent's absences from work during the year were authorized by her supervisor and for legitimate purposes. On May 9, McGee called the Respondent into his office and handed her a copy of the evaluation. After looking at it, Respondent crumpled it up and threw it toward McGee's desk stating "This is what I think of this and you too." She left the office and came back shortly thereafter accompanied by Driggers. At this time, she informed McGee that she thought she had been treated unfairly by him and that the evaluation was inaccurate. McGee then gave her another copy of the evaluation and she left the office. Although Respondent was upset and raised her voice somewhat during the encounters with McGee concerning her evaluation, she did not shout at him. (Testimony of McGee, Respondent, Brooks, Conway, Driggers, Petitioner's Exhibits 3, 6) On May 10, 1979, McGee sent an office memorandum to Respondent stating that she was suspended with pay immediately until a hearing could be held to decide the outcome of his recommendation to the superintendent that her employment be terminated. The memorandum further stated that the incident involving the evaluation form and other reasons which were unspecified in the memorandum were the basis for the recommendation. Thereafter, on June 26, 1979, the Leon County School Board considered charges filed against Respondent by the Superintendent of Schools, suspended Respondent without pay and referred the matter for hearing to this division. (Respondent's Exhibit 1, case pleadings) In July 1978, Respondent had moved from Leon to Gadsden County. Her two children had previously been attending Leon High School in Tallahassee. One was a special education student in the 10th-grade and the other was due to enter his senior year in the fall. In her desire to ensure that the latter child would graduate from Leon High, Respondent listed the address of a friend in Tallahassee as the residence of her children. In October, Respondent made McGee aware of the fact that she had children attending school in Leon County even though she then resided in Gadsden County. However, he took no action in this regard at the time. In May 1979, a school investigation revealed that Respondent's children had not lived at the Tallahassee address during the school year. On May 29, Respondent was informed by the Director of Student Services that her children would not be allowed to attend Leon County Schools for the 1979-80 school year unless it was shown that her primary residence was in Leon County. Thereafter, the senior student graduated from Leon High School and Respondent was granted an exception to school policy to permit the other child to remain in Leon County Schools due to the fact that he was in the exceptional student program. (Testimony of McGee, Respondent, Pla, Petitioner's Exhibits 2, 9, Respondent's Exhibit 2) Respondent's performance of duty in the school system under prior directors of transportation during the years 1966-1974 was exemplary and demonstrated her dependability and competence in the department. Her relationships with principals of Leon County Schools over the years were excellent and she was invariably cooperative and helpful in assisting such officials in solving school transportation problems. (Testimony of Sullivan, Coggins, MacElwee, Carter, Murphy, Montford, Ferrell, and Ingram, Chambers, (Stipulation))
Recommendation 1. That the School Board of Leon County reinstate Respondent Vernie M. Smith to employment within the Leon County School System under the following terms: That such reinstatement shall be without pay during the period of Respondent's prior suspension by the School Board. That Respondent be issued a written reprimand for misconduct in office and gross insubordination as set forth in paragraphs 3c and 4a of the foregoing Conclusions of Law. That Respondent be restored to her former position or transferred within the school system, as deemed appropriate by the Board. DONE and ENTERED this 21 day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles A. Johnson, Esquire 2757 West Pensacola Street Tallahassee, Florida 32304 S. Gunter Toney, Esquire 200 East College Avenue Tallahassee, Florida 32301 Mr. N. E. (Ed) Fenn Superintendent of Leon County Schools 2757 West Pensacola Street Tallahassee, Florida 32304
The Issue The issue for consideration in this hearing is whether Respondent's Rule 6A-3.001, F.A.C., is a valid exercise of delegated legislative authority and a properly promulgated rule.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, School Board of Palm Beach County, (Board), was the agency responsible for providing public school bus transportation to eligible students in the public schools of Palm Beach County, Florida. The Petitioners were the parents of children enrolled in and attending Hammock Pointe Elementary School, a public school in Palm Beach County operated by the Respondent. Prior to January 17, 1992, the Petitioners' children were enrolled in and attending Whispering Pines Elementary School, operated by the Board, and, because that school was located sufficiently far from the students' homes, were receiving public school bus transportation furnished by the Respondent. After the beginning of the 1991-1992 school year, the Respondent advised the Petitioners that in January, 1992, their children would be reassigned from Whispering Pines to Hammock Pointe Elementary School located somewhat closer to their residences at the Boca Palms apartment complex located at 22573 Southwest 66th Avenue, Boca Raton, Florida. The program at the new school was to begin on January 21, 1992. The Petitioners were also advised that because Boca Palms was located within two miles of Hammock Pointe School, based upon the Board's interpretation of the pertinent rules regulating school bus transportation, Rule 6A-3.001, F.A.C., their children would not be provided with public bus transportation to that school. This interpretation was made by the Board's Director of school bus transportation. Rule 6A-3.001, which implements the provisions of Sections 230.23 and 234.01, Florida Statutes, requires school boards to provide bus transportation to those students whose homes are beyond a reasonable walking distance from the assigned public school. The term, "reasonable walking distance", for a student who is not handicapped, is defined by the rule as: ny distance not more than two (2) miles between the home and school or one and one- half (1 1/2) miles between the home and the assigned bus stop. Such distance shall be measured from the closest pedestrian entry point of the property where the student resides to the closest pedestrian entry point of the assigned school building or to the assigned bus stop. The District shall determine the shortest pedestrian route whether or not it is accessible to motor vehicle traffic. Though the rule does not specifically define it, the Board's Director of bus transportation interpreted the phrase, "closest pedestrian entry point of the property where the student resides" as meaning that point where the public right of way ends whether or not that point constitutes a pedestrian entry point. Measuring the shortest pedestrian route from the school building to the junction of the public street adjacent to the apartment complex and the complex entry drive, the Board indicates a distance of 1.9 miles, within the rule definition of reasonable walking distance. Mr. Wattenberg, the Petitioners' expert, who personally walked the route with a walking wheel, determined the distance from the gate to the school to be 10,692 feet. The distance from the aforementioned junction, down the complex entry drive to the actual gatehouse, is 277 feet. Subtracting that distance from Mr. Wattenberg's measured distance leaves a balance from the school to the junction of 10,415 feet. This is barely under 2 miles, (10,560 feet). From the gate to the closest residence within the complex is an additional 255 feet, and from the gate to the southwest corner of the complex is an additional 700 - 1,000 feet. Mr. Wattenberg considered those figures relevant on the basis of his interpretation of the term "entry point of the property" which, he feels, is the individual students' homes. All of those would lie well outside the 2 mile cut-off point. His position has some merit in light of the fact that the complex is surrounded by either a man made or vegetative fence which restrict pedestrian entry and exit to through the gate. Were the children to be able to walk directly from their homes to the school, they would have less distance to travel because all homes are currently located in an area to the south of the gate, and the walking route, for the most part, is to the south and east of the complex. However, under the circumstances here, the children have to walk the 10,416 feet to the junction, an additional 277 feet to the gate, and then from 255 to 1,000 feet more from the gate to their homes. Together, this is all in excess of 2 miles, but the Department's interpretation makes the controlling distance less than 2 miles. Even if the distance is less than 2 miles, however, the Board will provide transportation if it is determined that hazards exist along the route that would endanger the student. Here, the Board has also taken the position that the route to be followed by the students does not present any hazardous conditions within the meaning of Section 234.021, Florida Statutes. This position is supported by the opinion of Sergeant Szczepanski, the Sheriff Department's head of the school crossing division. She is familiar with the route proposed from Boca Palms to the school and drove it at the request of the Board's head of risk management. Her viewing convinced her that there was a hazard on S.W. 8th Street near S.W. 56th Avenue, but from her discussions with that individual was satisfied that the danger has been abated. If she felt it were unsafe she would say so and when she has done so in the past, the Board has uniformly acceded to her determination and provided bus transport. Whenever hazardous conditions are identified, the bussing is provided only so long as those conditions persist, and when the hazard is removed, the bussing is terminated. Ms. Falana, the Board's risk management expert reviewed the route several times while the school was being considered and built and found nothing which, to her, met the statutory criteria. As she saw it, going by the statutory criteria, there was no need even for crossing guards, but there is at least one guard along the projected route and a total of three for the entire school area. Ms. Falana walked the route herself and did not merely drive it. She was specifically looking for hazards to children and found none. She coordinated with Sgt. Szczepanski and determined that there were no complaints registered by any of the parents with the bussing division, with her office, or with Sgt. Szczepanski's office. Ms. Falana recognizes that along the projected route there is a dogleg with a rise in the side of the street, (without a walkway), where a child might slip down into the roadway. She feels this is not a problem, however, because there are other similar areas in the county and there has never been an accident at one of those sites. Only where children have to cross a major highway or an unusual traffic situation is a crossing guard required. Mr. Wattenberg disagrees with Ms. Falana's and Sgt. Szczepanski's assessments of the hazard situation and contends there are several. One is at the intersection of Edward Blvd. and Sandalfoot where high hedges obstruct the view of drivers. The intersection at 8th Street and 57th Avenue is also dangerous but there will be a crossing guard there. From 57th Avenue east the route is on a service road which runs along a canal that has no sidewalk or guardrail. Mr. Wattenberg, an adult, required 45 minutes to traverse the route which has 10 cross streets intersecting with it. There will be between 40 and 45 children who will have to make this walk at least twice a day, five days a week, in all kinds of weather. The evidence is not clearly dispositive of the issue. According to Mr. Baker, the Board's director of transportation, the decision on whether to provide bus transport is made on the basis of both distance and hazardous conditions. He measured the distance electronically with a measuring device calibrated for accuracy both before and after each use. There is no dispute as to the actual distances involved, only at what point the distance is to be measured. School Board policy requires that the distance be measured according to the terms of the Department of Education rule, (6A- 3.001(3)), which refers to "... the closest entry point of the property where the student resides." He measured the shortest route from the school to that point where the public sidewalk meet the private property on the abutting thoroughfare and found the distance to be 178 feet short of two miles. On that basis, the transportation was denied. Mr. Baker also looked at the issue of hazardous conditions and relied on the determination of Ms. Falana who has the authority to determine if there is such a condition. Here, she determined there was no hazard requiring transport within the criteria in the statute. To be certain of his position, Mr. Baker wrote to the State Department of Education which rendered an opinion that the starting point for measurement is the point of demarcation between the public street and the private property. According to Mr. McBride, the Department of Education's school bus chief, there is no statutory definition of "pedestrian entry point." However, the Department, and the state auditors, always use the property line between private and public property as the line of demarcation. In this case, then, even though the entry gate is 277 feet further in from the property line, the entry to the property, for bussing purposes, is at the property line at the street. To the best of his knowledge, there has been no official determination on this point by court, rule, or statute. Ms. Gudermuth, one of the Petitioners, indicates that at the present time, since the school change, the management at Boca Palms has been providing bus transport for the 35 or so children who are involved. If the complex did not do so, she would not allow her seven year old child to walk to the school. She could take her daughter to school in the morning, but because she works outside the home, could not come to get her after school without switching to part time work. Many other parents are in the same situation. Car pooling is not a viable option because she, and each other parent who participated, would still need to take time off from work when it was her or his turn to drive. Boca Palms has indicated that though it is currently providing transportation to its tenants by leased bus, it cannot continue to do so. Because of the cost of $1.00 per mile per student, plus insurance and driver salary, the cost cannot reasonably be passed on to tenants through rent increases because of existing economic conditions. When the issue was raised with several of the parents, they were uniformly opposed to it.
The Issue The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
The Issue Whether Petitioner is entitled to bus transportation for his children to and from Liberty Pines Academy, pursuant to section 1006.21(3)(a), Florida Statutes; Florida Administrative Code Rule 6A-3.001; and operative rules of the St. Johns County School Board.
Findings Of Fact Petitioner, Ryan A. Johnson, is the parent of two elementary-school-aged children who attend the Academy, a public school operated by Respondent. The Academy is located on Russell Sampson Road in northern St. Johns County. Petitioner and his children reside at 120 South Arabella Way in the St. Johns Forest subdivision (“the subdivision”) in St. Johns County. The subdivision is a large, gated, planned unit development in northern St. Johns County. The subdivision is roughly bounded by County Road 2209 (“CR 2209”) on the east, Russell Sampson Road on the west, and County Road 210 West (“CR 210”) on the south. Respondent, St. Johns County School Board, is the constitutional entity authorized to operate, control, and supervise the public schools within St. Johns County. See Art. IX, § 4(b), Fla. Const.; § 1001.32, Fla. Stat. Respondent is required to provide transportation for public school students “whose homes are more than a reasonable walking distance” from their designated school, as defined by the rules of the State Board of Education. § 1006.21(3)(a), Fla. Stat. The State Board of Education defines “reasonable walking distance” as “not more than two (2) miles between the home and school.” Fla. Admin. Code R. 6A-3.001(3). Background Prior to the 2018-2019 school year, Respondent provided bus transportation for Petitioner’s children as “courtesy riders,” students who live within two miles of their assigned school, but for whom transportation is provided by special authorization of the Superintendent. In this case, there was a direct route of two miles or less between the subdivision and the Academy. Part of the route proceeded through a wooded area out of sight of the roadway. Respondent deemed the route “too great a risk” for the students,1/ and provided bus transportation by special authorization. Prior to the beginning of the 2018-2019 school year, the Florida Department of Transportation built an interchange at the intersection of CR 2209 and State Road 9B (“SR 9B”), northwest of the subdivision. SR 9B is a divided highway that runs from Interstate 295, across Interstate 95, to CR 2209. In connection with the interchange construction, a new sidewalk was constructed connecting the existing sidewalk along CR 2209 to the Academy, via a route parallel to CR 2209 and a portion of the SR 9B entrance ramp. In the spring of 2018, Respondent’s transportation staff reevaluated the eligibility of students residing in the subdivision for bus transportation to and from the Academy. Based on the reevaluation, the Superintendent recommended termination of bus transportation to and from the subdivision. On October 9, 2018, Respondent voted to approve the Superintendent’s recommendation to terminate bus transportation between the Academy and the subdivision. The decision to terminate was based on Respondent’s finding that the subdivision is located within a reasonable walking distance from the Academy. Petitioner’s Challenge Petitioner challenges Respondent’s decision to terminate bus transportation on three grounds. First, he asserts that Respondent incorrectly calculated the distance of the most direct traveled route between the Academy and his residence. Second, Petitioner asserts that the route constitutes a hazardous walking condition under state law. Third, Petitioner argues Respondent’s decision was arbitrary, capricious, oppressive, erroneous, an abuse of agency discretion, or an invalid exercise of delegated authority. Respondent’s Calculation To determine whether Academy students living in the subdivision would be eligible for bus transportation for the 2018-2019 school year, Respondent’s transportation staff calculated the walking distance from their homes to the Academy, measured from the end of their driveways, along interior subdivision sidewalks, through the North Arabella Way pedestrian gate, along the CR 2209 sidewalk to the Academy front door. Transportation staff determined this route to be the “most direct traveled route” to and from the school. Petitioner’s home is located 6,740 feet (1.276 miles) from the Academy, calculated based on the most direct traveled route. On that basis, Respondent determined Petitioner’s children are not entitled to bus transportation to and from the Academy. Petitioner disputes the calculation because the designated “most direct traveled route” requires access through the North Arabella Way pedestrian gate, which he argues is not accessible to school-aged children. The gate is equipped with a locking mechanism. Residents may gain access from the sidewalk into the subdivision at the gate with an electronic access card issued by the subdivision’s homeowner’s association (“HOA”). Pursuant to the subdivision’s master property owners’ association rules and regulations, no electronic access card may be issued to residents under the age of 15. The subdivision’s declaration of covenants and restrictions states, in pertinent part: Minors shall not be permitted to use the Common Area except under the supervision of an adult Owner or lawful occupant over the age of eighteen (18) years, except under such conditions as the Board may from time to time establish. (emphasis added). The Common Area is defined broadly to include “all real property dedicated to, owned by, or held by the Association, or intended by the Declarant to be devoted to the common use or enjoyment of the Members,” and includes streets, landscaping, fencing, signage, buffer areas, conservation areas, and “entry features,” as well as the clubhouse and recreational facilities. The subdivision’s controlling documents allow for exceptions to be made at the Board’s discretion. In other words, the subdivision’s HOA, not Respondent, has control over whether Academy students can access the North Arabella Way pedestrian gate. Petitioner did not introduce any evidence supporting a finding that Respondent is required to consider, in determining the most direct traveled route, whether access is limited by private property restrictions. Nothing in the state statute or rules require Respondent to consider whether a pedestrian entry point is privately controlled. The HOA has the authority to create an exception to the gate entry restriction, which apparently would not even require an amendment to the subdivision covenants and restrictions. Further, pursuant to rule 6A-3.001, the reasonable walking distance “shall be measured from the closest pedestrian entry point of the property where the student resides” to the closest school entrance. The rule provides that the pedestrian entry point of the residence “shall be where private property meets the public right-of-way.” Fla. Admin. Code R. 6A-3.001(3). The public right-of-way is located 81 feet west of the North Arabella Way pedestrian gate, where the subdivision’s private property ends. The rule does not require Respondent to include in its measurement the distance between Petitioner’s driveway and the right-of-way. Thus, the rule does not anticipate consideration of any gate, or other entry structure, beyond the right-of-way. The distance from the public right-of-way outside the North Arabella Way entrance to the school entrance is 0.816 miles. Respondent’s much more generous calculation errs in favor of Petitioner’s children.2/ Hazardous Walking Conditions Even if the subdivision were less than two miles from the Academy, Respondent would be required to provide transportation for Petitioner’s elementary school children if they were subject to hazardous walking conditions on the most direct traveled route. See § 1006.21(3)(b), Fla. Stat. Petitioner argues that his children are entitled to bus transportation to and from the Academy because the most direct traveled route identified by Respondent subjects his children to hazardous walking conditions. Section 1006.23 defines hazardous walking conditions with respect to walkways parallel to a road, perpendicular to a road, and crossings over a road. In the instant case, Petitioner’s children will travel through the North Arabella Way pedestrian gate and follow a sidewalk parallel to CR 2209, and parallel, for a short distance, to the SR 9B entrance ramp. For walkways parallel to a road, “[i]t shall be considered a hazardous walking condition with respect to any road along which students must walk . . . if there is not an area at least 4 feet wide adjacent to the road . . . having a surface upon which students may walk.” § 1006.23(2)(a)1., Fla. Stat. This requirement is referred to as a “suitable walk area,” and is not required to contain a paved sidewalk. The walk area parallel to CR 2209 and entrance ramp to SR 9B is improved with a continuous concrete sidewalk that is a minimum of five feet wide. The statute additionally requires, where the road is uncurbed, the walking area be offset three feet from the edge of the roadway. In the instant case, CR 2209 and SR 9B are both curbed roadways. Nevertheless, the sidewalk along the walking route is set off a minimum distance of three feet from the edge of the curb. That area is referred to as the “utility area” and is a grassed area between the edge of the curb and the edge of the sidewalk. There are no other applicable statutory components to the definition of hazardous walking condition. Despite the conformance of the route with the “suitable walk area” requirements, Petitioner maintains the walking route poses a hazardous walking condition because of the speed with which traffic travels the adjacent roadways, the proximity of the sidewalk to those roadways, and documented instances of vehicle accidents in the area, at least one of which resulted in an overturned car on the subject sidewalk. The posted speed limit on CR 2209 is 45 miles per hour. The posted speed on the SR 9B entrance ramp increases to 50 miles per hour. The posted increased speed limit is located on the ramp after the subject sidewalk “jogs” away from SR 9B to the Academy. Petitioner points to School Board Rule 8.13(8), which provides as follows: Maximum regard for the safety of students and due consideration for the protection of health of all students transported shall be primary requirements in the routing of buses, establishing student stops, appointing drivers, and in providing and operating transportation equipment. Petitioner argues that Respondent’s decision to terminate bus transportation to his children violates this rule. He argues that making his children walk along roadways with a posted speed limit of 45 miles per hour, and along an entrance ramp where cars are accelerating to a speed of 50 miles per hour, and where documented accidents have occurred, including one which resulted in an overturned car on the sidewalk, does not take into account maximum regard for their safety. He argues that maximum regard for their safety dictates providing bus transportation between the subdivision and the Academy. Petitioner’s argument fails because rule 8.13 applies to Respondent’s transportation program, not determinations of hazardous walking conditions. Subsection (8) governs decisions regarding bus routes, establishing bus stops, selecting and appointing drivers, and operating buses and equipment. Subsection (8) does not govern Respondent’s decisions whether to provide courtesy bus transportation to students within a reasonable walking distance to the Academy.3/ The route identified by Respondent for Petitioner’s children to walk to and from the Academy does not contain any hazardous walking condition as defined in section 1006.23(2)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns County School Board enter a final order dismissing Petitioner’s challenge and affirming its decision to terminate bus transportation for Petitioner’s children, unless a special authorization is granted by the Superintendent. DONE AND ENTERED this 5th day of April, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 5th day of April, 2019. 1/ T.148:16-17.
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.
