10-001570TTS Manatee County School Board vs. Jerome Heaven Status: Closed Recommended Order on Wednesday, July 21, 2010.

Summary: Respondent was not guilty of gross insubordination because the order to wash buses was not reasonable given his medical condition. Respondent was guilty of being absent without authorized leave.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-1570

)

JEROME HEAVEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on May 27 and 28, 2010, in Bradenton, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9096

For Respondent: Carl R. Hayes, Esquire

Carl R. Hayes, P.A.

308 East Dr. Martin L. King, Jr.

Boulevard, Suite “E”

Tampa, Florida 33603

STATEMENT OF THE ISSUE

The issue in this case is whether there is just cause to

terminate Respondent’s employment as a school bus driver.

PRELIMINARY STATEMENT

On March 1, 2010, Petitioner, Manatee County School Board

(School Board), issued an Administrative Complaint against

Respondent, Jerome Heaven (Mr. Heaven), alleging that Mr. Heaven

violated Subsection 1012.67, Florida Statutes (2009) 1 ; Florida

Administrative Code Rules 6B-4.009(1)(b), 6B-4.009(3),

6B-4.009(4), and 6B-1.006(3)(e); and School Board of Manatee

County Policy 6.2(2)(b). Mr. Heaven requested an administrative

hearing, and the case was forwarded to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge to conduct the final hearing.

At the final hearing, the School Board called the following

witnesses: Debra Horne, Barry Murray, Teri Davis, Chuck Banks,

Franklin Farmer, Barbara Pelletier, and Terry Palmer.

Petitioner’s Exhibits 1 through 6, 8, 10, 12A through 12F, 13,

and 14 were admitted in evidence. Mr. Heaven testified in his

own behalf and offered no exhibits for admission in evidence.

The three-volume Transcript was filed on June 7, 2010.

Petitioner filed its Proposed Recommended Order on June 17,

2010. As of the date of this Recommended Order, Mr. Heaven has

filed no post-hearing submittals.

FINDINGS OF FACT

1. Mr. Heaven is employed by the School Board as a school

bus operator for the Manatee County School District (School

District).

2. Mr. Heaven’s direct supervisor is Teri Davis, the area

coordinator, and, Ms. Davis’ immediate supervisor is Terry

Palmer, the director of transportation.

3. In the 2009-2010 school year, Mr. Heaven was assigned a

bus route, which included the transportation of disabled

students. Barry Murray was assigned to Mr. Heaven’s bus as an

attendant to assist in maintaining conduct on the bus and in

getting the disabled students on and off the bus.

4. While assigned to Mr. Heaven’s bus, Mr. Murray observed

Mr. Heaven looking at the female students in a manner which

Mr. Murray perceived to be inappropriate. Mr. Murray felt that

Mr. Heaven was adjusting his rear view mirror so that he could

look at the female students. On two different occasions, he

observed Mr. Heaven stop the bus at a red light, get up out of

his seat, walk to the back of the bus, go back to his seat, and

continue driving. He heard Mr. Heaven ask female students their

names, and Mr. Murray thought that this was inappropriate

because the student’s names were already written down on a

passenger list, which Mr. Heaven had. Mr. Murray heard

Mr. Heaven ask one female student when her father would be home.

5. Mr. Murray cautioned Mr. Heaven about his behavior.

Mr. Murray felt that Mr. Heaven was still behaving

inappropriately after he was cautioned by Mr. Murray.

Mr. Murray contacted Ms. Davis about his concerns. Ms. Davis

was scheduled to do a routine evaluation of Mr. Heaven on

January 7, 2010, by riding with him on his route and observing.

She decided to see for herself if there was any inappropriate

behavior while she was doing her routine evaluation.

6. On January 7, 2010, Ms. Davis rode in Mr. Heaven’s bus

for Mr. Heaven’s routes that day. While Mr. Heaven was parked

at school waiting for his students, Ms. Davis saw him watch an

attractive female student walk in front of the bus. She

observed him watching female students as they entered and exited

the bus. She observed Mr. Heaven looking at a female student in

the rearview mirror of the bus. Ms. Davis felt that the looks

that Mr. Heaven gave the female students were inappropriate.

7. During her evaluation trip on January 7, 2010,

Ms. Davis watched as Mr. Heaven got out of the bus at a bus stop

where a female passenger was exiting. When Ms. Davis questioned

Mr. Heaven about his leaving the bus, he did not give a cogent

explanation.

8. Both Mr. Murray and Ms. Davis observed female students

put books in front of their faces and slip down into their

seats, when Mr. Murray and Ms. Davis thought that Mr. Heaven was

looking at the students. While Ms. Davis was on the evaluation

ride, one student asked to come and sit next to Ms. Davis.

Ms. Davis felt that the student was changing her seat to avoid

Mr. Heaven’s gaze.

9. No students testified at the final hearing concerning

Mr. Heaven’s behavior on the bus. There was no direct testimony

that the students felt that Mr. Heaven was looking at them

inappropriately.

10. Mr. Heaven had a plausible explanation for the actions

that Ms. Davis and Mr. Murray observed. Mr. Heaven would get up

at red lights sometimes in order to stretch his legs. His bus

route was five hours long, and he had sustained an injury to his

back and knee and needed to stretch his legs and back. He got

off at the bus stop where a female student exited because he

noticed an unfamiliar truck parked at the bus stop, and the

female was headed for the truck. When he got out, he recognized

the passenger in the truck. Mr. Heaven would adjust his rear

view mirror at times when the mirror would move from its normal

setting because of a bump in the road. Mr. Heaven watched the

students enter and leave the bus because he felt that he needed

to know who got on and who got off the bus. Mr. Heaven asked a

female student when her father was going to be home because

there was an antique car sitting in the student’s front yard,

and he wanted to ask her father about the car. Mr. Heaven’s

testimony is credited.

11. On January 14, 2010, Ms. Davis contacted Mr. Palmer

and told him what she had observed. Mr. Palmer told Ms. Davis

to contact the Office of Professional Standards (OPS), which she

did. Ms. Davis was instructed to send Mr. Heaven home.

Ms. Davis called Mr. Heaven and told him that there was an

investigation being initiated and that she would contact him

later in the day and tell him what to do next.

12. It is customary in the School District to assign

employees who are under investigation a temporary alternative

placement pending the investigation. In the case of bus

drivers, the temporary alternative placement is washing

substitute buses at the maintenance department. It should be

noted, however, that the School Board contracted the washing of

the regular buses to an independent contractor so that washing

buses was not a routine part of the duties of a bus driver.

13. Ms. Davis called Mr. Heaven on January 14, 2010, to

let him know that he would be assigned to washing buses. Their

recorded conversation is as follows:

Heaven: Hello.

Davis: Hey, Jerome, this is Terri Davis. I

just got with Mr.--spoke with Mr. Palmer.

And he said to tell you tomorrow morning

you’re to report to, no earlier than 7:30,

at 7:30 go over and report into at the guys

at maintenance. Okay. And you’re to work

your--

Heaven: For what?

Davis: To wash buses or do whatever they

ask you to do.

Heaven: No, ma’am, I was not hired to do

that.

Davis: Then you need to call Mr. Palmer and

talk with him, because that is what he said.

Heaven: Mr. Palmer can call me.

Davis: Well, you’re being assigned tomorrow

to--you’re supposed to be here at 7:30 to be

at maintenance to wash buses. And--

Heaven: I was hired to drive buses. Thank

you.

Davis: You need to be there. Jerome?

Hello.

14. Ms. Davis informed Mr. Palmer that Mr. Heaven had

refused to wash buses. On January 14, 2010, Mr. Palmer called

Mr. Heaven and told him that his refusal to Ms. Davis to wash

buses was unacceptable and was considered insubordination.

Mr. Palmer told Mr. Heaven to report to Mr. Palmer’s office the

next morning at 7:30 a.m. to see how they would proceed.

Mr. Heaven wanted to know why he was being investigated, and

Mr. Palmer said until the investigation was over that there was

nothing that he could tell Mr. Heaven. Mr. Heaven then said,

“Hello. Hello. Hello,” and the telephone went dead.

15. On January 15, 2010, Mr. Heaven went to the human

resources office of the School District. He did not have an

appointment, but spoke with C.V. Banks, Jr., who is the

assistant director of human resources. Mr. Heaven told

Mr. Banks that he was a bus driver and had been directed to wash

buses. Mr. Heaven said that he had told staff at transportation

that he was not hired to wash buses. Mr. Heaven did not tell

Mr. Banks that he had a physical condition that would be

aggravated by washing buses. Mr. Banks advised Mr. Heaven to

contact Mr. Heaven’s supervisor.

16. Mr. Heaven had sustained an injury to his leg, back,

and arm during a fall from his bus in early December 2009. From

December 7, 2009, to December 17, 2009, Mr. Heaven had been

placed on restrictions and was not allowed to drive his bus.

After he was released to return to work on December 17, 2009, he

continued to see his doctor and to get physical rehabilitation

therapy. After each doctor visit, Mr. Heaven would give the

School District’s risk management department a copy of the

doctor’s report.

17. Mr. Heaven had a regularly scheduled appointment to

see his doctor on January 15, 2010, for his injuries. After the

visit on January 15, 2010, the doctor again placed Mr. Heaven on

restrictions so that he could not drive his bus. The

restrictions were a result of some pain medication that the

doctor had prescribed and the need for Mr. Heaven to wear a knee

brace. The doctor also referred Mr. Heaven to an orthopedic

specialist. Mr. Heaven took the doctor’s report to the risk

management department. As a result of the doctor’s report,

Mr. Heaven was placed on approved leave for January 15, 2010.

18. On January 15, 2010, Mr. Heaven called OPS and spoke

to Debra Horne, an investigator for OPS. Ms. Horne told

Mr. Heaven that he was to report to the maintenance department

on Tuesday, January 19, 2010, to wash buses. 2

19. At 7:00 a.m. on January 19, 2010, Mr. Heaven reported

to Frank Farmer, a mechanic at the maintenance department.

Mr. Farmer told Mr. Heaven that he was assigned to wash buses.

Mr. Heaven said that he was not washing buses in his condition.

Mr. Farmer told Mr. Heaven to go and see Mr. Palmer.

20. After speaking with Mr. Farmer, Mr. Heaven went to see

Mr. Palmer. When he got to the transportation department,

Mr. Heaven spoke with Barbara Pelletier, a dispatcher. He told

Ms. Pelletier that he was not going to wash buses in his

condition.

21. After speaking with Ms. Pelletier, Mr. Heaven went to

Mr. Palmer’s office. Mr. Heaven wanted to know if Mr. Palmer

was going to make him wash buses in the condition that he was

in. Mr. Palmer told Mr. Heaven that the staff at risk

management had concluded that Mr. Heaven’s condition would not

preclude him from washing buses, and Mr. Palmer directed

Mr. Heaven to wash buses while the investigation was pending.

Mr. Heaven stated that he was not going to “further [his]

injuries by washing buses.” Mr. Heaven left Mr. Palmer’s office

and did not return to work that day.

22. During their conversation on January 19, 2010,

Mr. Heaven alleges that Mr. Palmer tried to push him out of the

office. Mr. Palmer denies the allegation and states that he was

trying to shake Mr. Heaven’s hand.

23. Mr. Heaven called OPS on January 19, 2010, and left a

message for the OPS investigator to call him. On January 20,

2010, Mr. Heaven did not report to work or call to report his

absence, but instead, went to OPS and left a message for the OPS

investigator to call him. The OPS investigator called

Mr. Heaven on January 20, 2010. Mr. Heaven told the

investigator that Mr. Palmer had pushed him and that he wanted

OPS to call law enforcement. The investigator declined to call

law enforcement, but told Mr. Heaven that he would need to

notify the police, if he wanted to press charges against

Mr. Palmer.

24. On January 21, 2010, Mr. Heaven did not come to work

and did not call in to report his absence. He did go to see his

doctor for a regularly scheduled appointment. The doctor

restricted Mr. Heaven from using his right knee, which precludes

him from driving a school bus. Mr. Heaven was sent home for the

remainder of the day and was credited with four hours of

approved leave. No evidence was presented as to the amount of

time that this restriction was in place.

25. January 22, 2010, was a Record Day, and none of the

bus drivers worked that day.

26. On Monday, January 25, 2010, Mr. Heaven went to the

transportation office, where he was directed to take a random

drug test. After returning from taking the drug test,

Mr. Heaven was told to report to risk management for light duty.

The light duty consisted of shredding papers and making up

folders.

27. School Board of Manatee County Policy 6.11(12)(c)

provides:

(c) Involuntary Termination:

Any employee of the School Board may be

terminated from employment, for just cause,

including, but not limited to, immorality,

misconduct in office, incompetence, gross

insubordination, willful neglect of duty,

drunkenness, or conviction of any crime

involving moral turpitude, violation of the

Policies and Procedures manual of the School

District of Manatee County, violation of any

applicable Florida statutes, violation of

the Code of Ethics and the Principles of

Professional Conduct of the Education

Profession in Florida.

28. School Board of Manatee County Policy 6.2(2)(b)

provides:

(b) Disciplinary Action

Unauthorized leave shall constitutes willful

neglect of duty and misconduct and

therefore, may result in the initiation of

dismissal procedures, loss of salary or such

disciplinary action as may be deemed

appropriate. Employees will not receive pay

for unauthorized leave.

1. Any employee who is willfully absent

from duty without leave shall forfeit

compensation for the period of absence and

his/her contract shall be subject to

termination by the school board. Any

willful absence from work without notice may

be considered grounds for termination.

2. Any absence from work without leave or

excessive absence with notice may be

considered grounds for termination.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

30. Petitioner has the burden to establish the allegations

in the Administrative Complaint by a preponderance of the

evidence. McNeil v. Pinellas County School Board , 678 So. 2d

476 (Fla. 2nd DCA 1996); Dileo v. School Board of Dade County ,

569 So. 2d 883 (Fla. 3rd DCA 1990). A preponderance of the

evidence is the greater weight of the evidence or evidence that

more likely than not tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

31. The School Board has alleged that Mr. Heaven is guilty

of misconduct in office, taking unauthorized leave, absence

without leave, a violation of Florida Administrative Code

Rule 6B-1.006(3)(e), gross insubordination, and incompetence.

Subsection 1012.40(2)(a), Florida Statutes, provides that

educational support employees, such as bus drivers, may be

terminated for reasons set forth in the collective bargaining

agreement 3 or by school district rule if no collective bargaining

agreement exists. School Board of Manatee County

Policy 6.11(12)(c) provides that a School Board employee may be

terminated for misconduct in office, incompetence, gross

insubordination, a violation of the School Board policies, a

violation of Florida Statutes, and a violation of the Code of

Ethics.

32. Section 1012.67, Florida Statutes, provides:

Any district school board employee who is

willfully absent from duty without leave

shall forfeit compensation for the time of

such absence, and his or her employment

shall be subject to termination by the

district school board.

33. School Board of Manatee County Policy 6.2(2)(b)

provides that an employee may be disciplined for taking

unauthorized leave. Such discipline may include termination,

loss of salary, or other such disciplinary action as may be

deemed appropriate.

34. Florida Administrative Code Rule 6B-4.009 provides

criteria for suspension and dismissal actions against

instructional personnel and is helpful in defining grounds for

dismissal of educational support employees. One of the bases

for dismissal is gross insubordination. The definition of gross

insubordination set forth in Florida Administrative Code

Rule 6B-4.009(4) provides that “[g]ross insubordination or

willful neglect of duties is defined as a constant or continuing

intentional refusal to obey a direct order, reasonable in

nature, and given by and with proper authority.”

35. Misconduct in office is defined in Florida

Administrative Code Rule 6B-4.009(3) as “a violation of the Code

of Ethics of the Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of Professional Conduct for

the Education Profession in Florida as adopted in Rule 6B-1.006,

F.A.C., which is so serious as to impair the individual’s

effectiveness in the school system.” Florida Administrative

Code Rule 6B-1.006(3)(e) provides that an individual “[s]hall

not intentionally expose a student to unnecessary embarrassment

or disparagement.”

36. Florida Administrative Code Rule 6B-4.009(1) defines

incompetency as “inability or lack of fitness to discharge the

required duty as a result of inefficiency or incapacity.” The

rule further defines incapacity to include “lack of adequate

physical ability.”

37. The School Board claims that Mr. Heaven was

insubordinate because he refused to wash school buses while

being investigated by OPS. When Mr. Heaven told Ms. Davis and

Mr. Palmer that he was not going to wash the school buses on

January 14, 2010, he did not tell them that he had a physical

condition that would be aggravated by washing the buses. On

January 15, 2010, Mr. Heaven visited the department of human

resources and advised the assistant director that he was not

hired to wash buses. However, he did visit his physician on

January 15, 2010, and was placed on the restriction of not

driving a school bus because of the medication that he was

taking and the knee brace he was wearing. Because of the

doctor’s report, Mr. Heaven was granted leave for January 15,

2010.

38. When Mr. Heaven reported to work on January 19, 2010,

he informed Mr. Farmer, Mr. Palmer, and Ms. Pelletier that he

thought that washing buses would aggravate his condition and

would be harmful to him. Thus, at this time, Mr. Heaven did put

School Board personnel on notice that he had a physical

condition that may preclude him from washing buses. The issue

becomes at this junction whether it was reasonable for the

School Board to order Mr. Heaven to wash buses. Based on the

totality of the circumstances, it was not reasonable for the

School Board to order Mr. Heaven to wash school buses given his

medical history.

39. A little over a month before the order to wash buses

occurred, Mr. Heaven had sustained a work-related injury to his

back, knee, and arm. He was out of work for ten days. He

continued to see his physician and therapist for his injuries.

He went to see his physician on January 15, 2010, for an

appointment which had been scheduled well in advance of the

initiation of the investigation of Mr. Heaven. The doctor

placed Mr. Heaven on restrictions because of the knee brace and

pain medication. The School Board argues that the doctor did

not restrict Mr. Heaven from washing buses, but there is no

evidence whether the doctor knew that washing buses would be

considered a part of Mr. Heaven’s duties. In fact, the evidence

that the School Board hired a contractor to wash the regular

buses supports the contention that washing school buses was not

a routine duty of a bus driver. Additionally, when Mr. Heaven

returned to his physician on January 21, 2010, the doctor made

it clear that Mr. Heaven was not to use his knee.

40. The School Board has failed to demonstrate by a

preponderance of the evidence that Mr. Heaven is guilty of gross

insubordination.

41. The School Board has alleged that Mr. Heaven is guilty

of misconduct and a violation of Florida Administrative Code

Rule 6B-1.006(3)(e) for his inappropriate conduct toward female

students. Ms. Davis and Mr. Murray felt that Mr. Heaven was

looking at various body parts of the female students in an

inappropriate manner and that he was stopping the school bus to

look at the female students. Mr. Heaven’s explanation of his

conduct presents innocent and plausible rationales for his

actions. No students were called to testify that they felt

uncomfortable by Mr. Heaven’s actions. No complaints were made

by students concerning Mr. Heaven’s conduct. The School Board

has failed to establish that Mr. Heaven is guilty of misconduct

or a violation of Florida Administrative Code

Rule 6B-1.006(3)(e).

42. The School Board has failed to demonstrate that

Mr. Heaven should be terminated for incompetency. The evidence

established that for an unspecified number of days that

Mr. Heaven could not drive a bus because of the results of a

workers’ compensation injury. No evidence was produced to show

that Mr. Heaven’s injuries were permanent or temporary. It is

doubtful that the School Board terminates every employee who

suffers an injury.

43. The School Board has established by a preponderance of

the evidence that Mr. Heaven was absent without leave on

January 19 and 20, 2010. He left work without permission on

January 19, 2010, and did not come to work on January 20, 2010,

or provide notice to the appropriate personnel at the School

District that he was not coming to work. Thus, the School Board

has established that Mr. Heaven has violated Section 1012.67,

Florida Statutes, and is subject to discipline pursuant to

School Board of Manatee County Policy 6.2(2)(b). Termination of

employment is not the only discipline which may be warranted for

being absent without leave. Given the circumstances of this

case, termination is not warranted. However, some discipline is

warranted. Such discipline should be a suspension without pay

for the time which Mr. Heaven has been suspended as of the date

of this Recommended Order and a forfeiture of any payment for

the days he was absent without authorized leave.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Mr. Heaven is not guilty of misconduct, gross

insubordination, and incompetency; finding that he is guilty of

being absent without leave; suspending him without pay for the

time that he has been suspended as of the date of this

Recommended Order; and requiring forfeiture of any payments to

Mr. Heaven for the days he was absent without authorized leave.

DONE AND ENTERED this 21st day of July, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of July, 2010.

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

2/ Monday, January 18, 2010, was a school holiday; therefore,

Mr. Heaven was not required to work.

3/ No evidence was presented as to the existence of a collective

bargaining agreement.

COPIES FURNISHED :

Scott A. Martin, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9096

Carl R. Hayes, Esquire

Carl R. Hayes, P.A.

308 East Dr. Martin L. King, Jr.

Boulevard, Suite “E”

Tampa, Florida 33603

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206-9069

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.