03-000930 Miami-Dade County School Board vs. Sophia Cheeks Status: Closed Recommended Order on Thursday, December 4, 2003.

Summary: School bus driver, who confronted a student who called driver a "bitch," and engaged in a physical altercation, should be suspended for 30 days without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0930

)

SOPHIA CHEEKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative L aw Judge (ALJ) Daniel Manry conducted the

administrative hearing in this matter on September 12, 2003, in

Miami, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue

Suite 400

Miami, Florida 33132

For Respondent: Mary Jill Hanson, Esquire

Hanson, Perry & Jensen, P.A.

10 5 South Narcissus Avenue, Suite 510

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues are whether Respondent engaged in violence in

the workplace, breached the responsibilities and duties of an

employee, and imposed physi cal 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.

PRELIMINARY STATEMENT

By letter dated March 13, 2003, Petitioner notified

Respondent that Petitioner intended to impose the proposed

suspension, effective March 12, 2003, for the violations alleged

in this proceeding. Respondent requested an administrative

hearing, and Petitioner referr ed the matter to DOAH to conduct

the hearing.

On March 21, 2003, ALJ Errol H. Powell scheduled the

administrative hearing for May 21, 2003. Petitioner filed a

Notice of Specific Charges on May 7, 2003, based upon an

incident in which the Notice alleged that Respondent instigated

a physical altercation with a student on a school bus. On

May 23, 2003, Petitioner filed a Motion to Amend its Notice of

Specific Charges to include an allegation of Misconduct in

Office for allegedly threatening students and en dangering their

physical health and safety. ALJ Powell granted the motion and

rescheduled the hearing for September 12, 2003.

At the hearing, Petitioner presented the testimony of six

witnesses, and submitted one exhibit for admission in evidence.

Respon dent testified, called one witness, and submitted one

exhibit for admission in evidence.

The identity of the witnesses and exhibits and any rulings

are set forth in the Transcript of the hearing filed on

October 28, 2003. The undersigned granted the par ties'

Unopposed Motion for Extension of Time to file proposed

recommended orders (PROs), and the parties timely filed their

respective PROs on November 24, 2003.

FINDINGS OF FACT

1. Petitioner is responsible for operating public schools

within the sch ool 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 promulg ated 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 s chool bus driver within

the District for approximately ten years.

2. 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.

3. On October 8, 2002, Respondent drove a school bus for

the purpose o f 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.

4. 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 t he

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.

5. Respondent engaged in other behavior that endangered

the physical safety of the students. Res pondent'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."

6. Res pondent 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 al tercation with C.C.

7. 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.

8. 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.

9. 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 th e bus attacked her.

10. 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).

11. Morris paged Aned Lamboglia (La mboglia), 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."

12. 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 patt ern 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.

C ONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties and the subject

matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

(2003).

14. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the acts alleged in the Amended Notice of

Specific Charges and the reasonableness of the proposed penalty.

McNeill v. Pinellas County School Board , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Allen v. School Board of Dade Co unty , 571

So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of

Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990). Petitioner

satisfied its burden of proof.

15. Petitioner's Rule 6Gx13 - 4 - 1.08 prohibits violence in

the workplace. In relevant part, Sc hool Board Rule 6Gx13 - 4 - 1.08

provides:

Nothing is more important to Dade County

Public School than protecting the safety and

security of its students and employees and

promoting a violence - free work environment.

Threats, threatening behavior, or acts of

vi olence against students, employees,

visitors, guests, or other individuals by

anyone on DCPS property will not be

tolerated. Violations of this policy may

lead to disciplinary action which includes

dismissal, arrest and/or prosecution.

16. Respondent vi olated School Board Rule 6x13 - 4 - 1.08 on

October 8, 2002. Respondent drove a school bus in a manner that

failed to protect the safety and security of the students riding

in the bus. Respondent engaged in a physical altercation with a

student and inadverte ntly harmed other students who attempted to

intervene. Respondent threatened the students riding in the

bus.

17. Petitioner's Rule 6Gx13 - 4A - 1.21 prescribes a code of

conduct with which each employee must comply. In relevant part,

School Board Rule 6G x13 - 4A - 1.21 provides:

All persons employed by The School Board of

Miami - Dade County, Florida, are

representatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

18. Respondent violated School Board Rule 6Gx13 - 4A - 1.21 on

October 8, 200 2. Respondent used profane language in the

workplace when Respondent used the term "bitch" to refer to a

student. Respondent engaged in unseemly conduct when Respondent

physically confronted C.C. rather than attempting to defuse the

situation.

19. Res pondent failed to follow the training provided by

Petitioner. Respondent did not attempt to defuse the situation

when C.C. referred to Respondent as a "bitch." Rather,

Respondent escalated the situation by verbally retaliating,

getting out of her seat, p hysically confronting C.C., and

threatening the other students on the bus.

20. Petitioner strictly forbids physical discipline of

students. In relevant part, School Board Rule 6Gx13 - 5D - 1.07

states:

The administration of corporal punishment in

Miami - Da de County Public Schools is strictly

prohibited. Miami - Dade County Public

Schools has implemented comprehensive

programs for the alternative control of

discipline. . . .

21. Respondent violated School Board Rule 6Gx13 - 5D - 1.07 on

October 8, 2002. Respon dent utilized physical confrontation and

force to control C.C. and students who attempted to intervene.

Respondent failed to follow the procedures prescribed by

Petitioner for the alternative control of discipline.

22. Florida Administrative Code Rule 6B - 4.009(3) defines

misconduct in office to include a violation of the Code of

Ethics of the Education Profession, adopted in Florida

Administrative Code Rule 6B - 1.001, and a violation of the

Principles of Professional Conduct for the Education Profession

in Florida, adopted in Florida Administrative Code Rule

6B - 1.006, when the violation is so serious that it impairs

Respondent's effectiveness in the school system. Florida

Administrative Code Rules 6B - 1.001 and 6B - 1.006(3)(a), in

relevant part, respectiv ely require Respondent to "exercise the

best professional judgment and integrity" and to make

"reasonable efforts to protect the student from conditions

harmful to . . . the student's . . . physical health and

safety."

23. On October 8, 2002, Respondent e ngaged in misconduct

in office. Respondent failed to exercise the best professional

judgment or to make reasonable efforts to protect the students

from conditions harmful to their physical health and safety.

Respondent's misconduct in office was so serio us that it

impaired Respondent's effectiveness as a school bus driver.

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 Boar d 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

DANI EL 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

D ivision 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 W est 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. Stierhe im, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1394

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recomm ended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.