04-000341 Sarasota County School Board vs. Nancy Jones Status: Closed Recommended Order on Thursday, August 19, 2004.

Summary: Respondent struck unruly, disobedient student(s) riding her bus. School Board policy prohibits corporeal punishment in any form. Recommend that Respondent be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0341

)

NANCY JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a nd in accordance with Section 120.569

and Subsection 120.57(1), Florida Statutes (2003), this cause

came on for final hearing on May 14, 2004, in Sarasota, Florida,

before Fred L. Buckine, a duly - designated Administrative Law

Judge of the Division of Admin istrative Hearings.

APPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Bowman, George, Scheb, Toale

& Robinson

2750 Ringling Boulevard, Suite 3

Sarasota, Florid a 34237

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Sarasota County School Board policy and the Code of Professional

Conduct of Non - Instructional Support Staff employed by the

Sarasota C ounty School District and, if so, whether Respondent's

employment with the Sarasota County School Board should be

terminated.

PRELIMINARY STATEMENT

By letter dated January 5, 2004, Gene Witt (Mr. Witt)

superintendent of schools for Petitioner, Sarasota Cou nty School

Board (School Board), notified Respondent, Nancy Jones

(Ms. Jones), that probable cause had been found for her

termination. Mr. Witt advised Ms. Jones that he would recommend

at the February 3, 2004, School Board meeting that she be

terminated effective February 4, 2004, and informed her of her

right to challenge her termination by requesting a hearing

pursuant to Chapter 120, Florida Statutes (2003).

Ms. Jones, by letter dated January 21, 2004, requested an

administrative hearing, and on Janua ry 29, 2004, the matter was

referred to the Division of Administrative Hearings.

On February 5, 2004, the parties' Joint Response to Initial

Order was filed. On February 10, 2004, a Notice of Hearing,

scheduling the final hearing for April 7, 2004, in Sar asota,

Florida, and an Order of Pre - hearing Instructions were entered.

On February 18, 2004, Mr. Witt notified Ms. Jones by letter

that insubordination and misconduct in office were additional

causes in support of her termination.

On February 23, 2004, Ms. Jones' attorney, Anthony D.

Demma, filed a motion to withdraw as counsel of record, and on

March 2, 2004, an Order allowing withdrawal of Attorney Demma as

counsel of record was entered.

On March 29, 2004, the School Board filed a Motion for

Continuanc e of the final hearing, and on March 31, 2004, an

Order continuing and rescheduling the final hearing to May 14,

2004, was entered.

At the final hearing on May 14, 2004, the undersigned

delayed the proceeding for 45 minutes awaiting appearance of

Ms. Jone s, but she failed to appear. In Ms. Jones' absence, the

School Board presented the testimony of seven witnesses: L.J.,

M.N., N.K., J.M., Susan Rae Snyder, Jody Dumas, and John Lempe

and offered 22 exhibits (P - 1 through P - 22), which were admitted

into evi dence. Ms. Jones was provided written notice of both

her termination by the School Board and of this proceeding. She

elected not to attend this proceeding, and she did not otherwise

notify the Division of Administrative Hearings of reasons for

her absenc e.

The one - volume Transcript of this proceeding was filed on

June 16, 2004. Ms. Jones did not file a proposed recommended

order. The School Board's Proposed Recommended Order was filed

on June 16, 2004, and has been considered in preparation of this

Reco mmended Order.

FINDINGS OF FACT

1. The School Board is a political subdivision and an

administrative agency of the State of Florida charged with the

duty to operate, control, and supervise all public schools and

personnel in the Sarasota County School D istrict. Mr. Witt is

the superintendent of schools for the Sarasota County School

District.

2. At all times relevant, Ms. Jones was employed with the

School Board by contract as a school bus driver. In that

capacity, Ms. Jones was classified as a non - pr ofessional and

non - administrative contract employee of the School Board's

transportation department. She agreed to accept the contractual

appointment (school bus driver) to perform such duties and

services as may be required to comply with all laws of the State

of Florida and rules and regulations made by the School Board.

3. The School Board's transportation department operated a

bid policy for its school bus drivers. Under the School Board's

bid policy, each school bus driver was afforded an opportun ity

to bid (make a written selection of a particular school bus

route) on the school bus route for the forthcoming school year.

At the start of the 2003 - 2004 school year, Ms. Jones bid upon

and was awarded the Oak Park School (Oak Park) bus route. Oak

Pa rk was attended by elementary through high school - aged

exceptional students or exceptional student education ("ESE")

students, as defined under Section 4.12 of the School Board's

policies manual. Ms. Jones was assigned bus number 9615.

4. The first res ponsibility of the school bus driver is

the safe operation of the school bus, and the second

responsibility is providing discipline to those who are

transported.

5. In October of the 2003 - 2004 school year, Susan Snyder

(Ms. Snyder) was assigned to work on school bus number 9615 as

the school bus attendant. A school bus attendant's primary

responsibilities are to ensure the safety of and provide care to

the students that are being transported on the bus and to

minimize distractions to the school bus driv er caused by the

students while being transported. The students who were being

transported by Ms. Jones to Oak Park have behavioral issues, are

physically handicapped, and/or have been unsuccessful at other

schools within the Sarasota County School Distri ct.

6. At various times during the 2003 - 2004 school year,

between eight and 12 students between the ages 14 and 17 rode

the bus driven by Ms. Jones. Four of those students were L.J.,

M.N., N.K., and J.M. The collective testimonies of these four

witnesse s established that they frequently used profanity on the

bus in their daily conversations with each other and in their

daily conversation, in the context of discipline, with

Ms. Jones. The students would routinely yell among themselves

and at Ms. Jones, and she, in return, would yell at them.

7. When Ms. Jones told the students to do something, "sit

down," "stop playing around," or "don't open the windows on the

bus," the students refused to obey, and Ms. Jones would threaten

the students with physical v iolence. Those threats would elicit

like - kind responsive threats from the students. The evidence is

inconclusive for the purpose of identifying specific profanity

uttered by a specific student. However, the evidence is clear

that an exchange of profanit y occurred between Ms. Jones and the

students identified in paragraph 4 hereinabove.

8. At some unspecified time, but prior to December 9,

2003, Ms. Jones had previously and repeatedly instructed the

students to leave the bus windows up while traveling. As they

were traveling down Interstate 75 (I - 75), N.K., ignoring

Ms. Jones' previous instructions to leave the windows up, began

lowering the window. Ms. Jones observed N.K.'s actions and

repeated her instructions to leave the window up. She was

unable to stop on the interstate, but when she reached the

Fruitville, I - 75 exit, Ms. Jones exited the interstate and

stopped the bus. She then turned off the engine, got up from

the driver's seat, and went to N.K.'s seat where she pushed

N.K., and N.K. pushed h er back. The shoving back and forth

between Ms. Jones and N.K. ended with Ms. Jones slapping N.K.

At the end of her bus run for that day, Ms. Jones reported the

incident by a Student Discipline Referral Report. N.K. told his

mother of the incident, and she informed Oak Park

administration. After consideration of all the facts, Oak Park

administration disciplined N.K. for his conduct on the bus. It

is found that Ms. Jones willfully violated the School Board's

policy by slapping N.K.

The "Yugioh" playing cards incident

9. The students would play a card game known as "Yugioh."

The cards belonged to L.J. Ms. Jones had previously instructed

the students not to play "Yugioh" on the bus because of the

disturbance the game caused, and she specifically instru cted

L.J. not to bring his "Yugioh" cards on the bus. On December 9,

2003, L.J. and other students, with disregard of Ms. Jones'

previous instruction not to play "Yugioh" on the bus, were again

playing "Yugioh." Ms. Jones asked them to stop, and they

ign ored her. She asked L.J. to bring the cards to her, and he

refused to obey her request.

10. When she reached the stop sign at the intersection of

South Briggs Avenue and Bahia Vista Street, in Sarasota County,

Florida, Ms. Jones stopped the bus, turned off the engine, and

approached L.J. where he was seated. An argument ensued, which

was accompanied by Ms. Jones' attempt to take the cards from

L.J. and his refusal to relinquish his cards.

11. During this altercation, Ms. Jones struck L.J. about

his head, shoulders, and face. She pinched his cheeks. L.J.

and Ms. Jones exchanged vulgar insults back and forth.

Ms. Jones told M.N., another student, to grab L.J.'s "titties"

and pinch them, and he did so.

12. It was noted that L.J. has a large body with an

extraordinary fleshly chest. After the "tittie" - pinching

incident, L.J. asked to be let off the bus at that location,

which was not his usual bus stop, and Ms. Jones, as she returned

to the driver's seat, initially refused to do so. After sitting

in the driver's seat, Ms. Jones granted L.J.'s request to exit

the bus at the intersection of South Briggs Avenue and Bahia

Vista Street.

13. It is found that Ms. Jones did not violate the School.

Board's policy by permitting L.J. to get off the bus at a

location other than his normal pick up and exit stop. Drivers

are not allowed to prevent a student from getting off the bus;

they can only call transportation dispatch and report the

student by name and the location the student got off the bus.

14. It is found that Ms. Jones did, however, violate the

School Board's policy when she struck L.J. and when she

requested and encouraged another student to inappropriately

touch L.J.'s chest.

15. When he arrived home, L.J. reported the bus incident

to his pa rents, and they immediately registered a complaint

against Ms. Jones with Oak Park administration. Two days later,

December 11, 2003, L.J.'s father, L.J., Sr., filed a police

report with the Sarasota County Sheriff's Department. An

officer investigated t he matter on December 19, 2003, by

interviewing only L.J. and Ms. Snyder. Based upon those two

interviews, the investigating officer recommended that the

charge of battery be filed against Ms. Jones. There is no

further evidence of record regarding the b attery charge

recommendation made by the investigating officer.

16. The School Board's transportation dispatcher was

informed of L.J.'s parents' complaint, and he radioed Ms. Jones

and Ms. Snyder instructing them, upon completing the evening bus

run, to r eport directly to his office and to give written

reports of the L.J. incident. In her written report given

immediately following the incident, Ms. Jones acknowledged that

there was an exchange of profanity between her and the students

involved, but she de nied hitting L.J. or telling other students

to pinch L.J.'s titties.

17. The evidence of record reflects that Ms. Snyder did

not dispute Ms. Jones' version of the incident. Ms. Snyder also

executed a written incident report immediately following the

in cident containing her version of what occurred. According to

the School Board, Ms. Snyder's initial written incident report

was inexplicably lost. At the hearing, the School Board

introduced an unsigned document (the School Board's Exhibit P - 9)

that was not sworn to by Ms. Snyder, purporting it to be a

second revised report written by Ms. Snyder. This document is

found to be unreliable.

18. Later on the evening of December 9, 2003, after giving

her written report that was somehow lost, Ms. Snyder called her

Union representative and gave a description of what took place

on the bus on December 9, 2003. A meeting was arranged with the

director of transportation, Jody Dumas (Dumas). At the meeting,

Ms. Snyder gave a version of the December 9, 2003, bus inc ident

that was contrary to her earlier confirmation of Ms. Jones'

December 9, 2003, written incident report.

19. Ms. Snyder's recall of the December 9, 2003, incident

alleged that Ms. Jones slapped and verbally abused and

humiliated L.J. She went on to i nclude a claim that

Ms. Jones intimidated her and the students by telling everyone

on the bus that they were to say nothing happened on December 9,

2003.

20. Mr. Dumas conducted his investigation of Ms. Snyder's

allegations by interviewing M.N. and J.M. on December 12, 2003.

During the initial interview, M.N. confirmed Ms. Jones' version

of the incident. Under the pressure of Mr. Dumas' continuous

questioning, coupled with the promise that he would not be

required to ride Ms. Jones' bus anytime in the f uture, M.N.

capitulated and confirmed the "tittie" - pinching version of the

incident and agreed with Ms. Snyder's "say nothing happened on

December 9, 2003," addition to her version of the incident.

21. It is found that Ms. Jones did in fact instruct

an other student to pinch L.J.'s titties, and the student, for

reasons of his own, complied with the request while L.J. sat

there humiliated. The evidence of record in support of

Ms. Snyder's allegation that Ms. Jones intimidated her and all

the students on the bus by telling them "say nothing happened on

December 9, 2003," is unreliable and rejected by the

undersigned.

22. On December 10, 2003, Mr. Dumas suspended Ms. Jones

with pay pending further investigation of the December 9, 2003,

incident. Mr. Duma s, after his review of Ms. Snyder's version

of what occurred and his interviews with unnamed students, met

with Ms. Jones and confronted her with the "slapping and verbal

abuse of [L.J.]" allegations. Ms. Jones denied slapping and

verbally abusing L.J., a t which time Mr. Dumas advised

Ms. Jones that he would recommend her termination to the School

Board.

23. It is found that the suspension of Ms. Jones by

Mr. Dumas was appropriate and in accordance with the School

Board's policy.

24. On December 19, 2003, in his memorandum to Scott Lempe

(Mr. Lempe), director of human resources, Mr. Dumas set forth

specific factual bases in support of his recommended termination

of Ms. Jones: (1) Ms. Jones slapped L.J. at least two times in

the face; (2) Ms. Jon es told another student on the bus, M.N.,

to go over to L.J. and pinch his titties; and (3) on at least

one other occasion, Ms. Jones told one student to slap another

student because he was putting a window down.

25. Mr. Lempe prepared a notice of termina tion on

January 5, 2004, containing his detailed explanation of the

grounds for the termination based upon Ms. Jones' violations of

Section 5.30(2)(c) of the Sarasota County School Board policies

manual, regarding corporal punishment and the Policy Manual ,

Code of Professional Conduct of Non - Instructional Support Staff,

and Sections 1012.22 and 1012.27, Florida Statutes (2003),

insubordination and misconduct in office. On February 18, 2004,

the School Board terminated the employment of Ms. Jones with its

transportation department as a school bus driver.

26. The School Board proved, by a preponderance of

credible evidence, that Ms. Jones violated the School Board's

policy and the Code of Professional Conduct of Non - Instructional

Support Staff employed by t he Sarasota County School District,

as alleged in the notice of termination dated February 18, 2004.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

28. The School Board has the burden of proof in this non -

instructional employee dismissal hearing. The standard of proof

in this proceeding is by a preponderance of the evidence.

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

(Fla. 2nd DCA 1996); Dileo v. School Board of Dade County , 569

So. 2d 883, 884 (Fla. 3rd DCA 1990).

29. Because Ms. Jones is not classified as instructional

or administrative personnel, Section 1012.33, Florida Statutes

(2003), is in applicable. Ms. Jones falls within the "other

school employees" category as that term is found in Subsections

1012.22(1)(f) and 1012.27(5), Florida Statutes.

30. The School Board is authorized to discipline "other

school employees" under Subsection 1012. 22(1)(f), Florida

Statutes (2003), that provides:

Suspension, dismissal, and return to annual

contract status. -- The district school board

shall suspend, dismiss, or return to annual

contract members of the instructional staff

and other school employees; however, no

administrative assistant, supervisor,

principal, teacher, or other member of the

instructional staff may be discharged,

removed, or returned to annual contract

except as provided in this chapter.

31. The School Board is authorized to direc t the work of

its employees and to discipline those employees under Section

1012.27(5), Florida Statutes (2003) that provides:

SUSPENSION AND DISMISSAL. -- Suspend members

of the instructional staff and other school

employees during emergencies for a perio d

extending to and including the day of the

next regular or special meeting of the

district school board and notify the district

school board immediately of such suspension.

When authorized to do so, serve notice on the

suspended member of the instruction al staff

of charges made against him or her and of the

date of hearing. Recommend employees for

dismissal under the terms prescribed herein

32. Section 5.30(2)(c) of the School Board policy

precludes and prohibits corporate punishment in all forms by all

employees. Violation of this prohibitive principle will subject

the violator to disciplinary action under Subsections

1012.22(1)(f) and 1012.27(5), Florida Statutes (2003). Section

5.30(2)(c) of the School Board policy provides:

The teacher, other members of the

instructional staff or bus drivers shall

assume such authority for the control and

supervision of students as they maybe

assigned by the principal or the principal's

designated representative and shall keep

order in the classroom or other pl aces when

in charge of students. Corporate punishment

shall not be administered in the Sarasota

County School System.

33. The School Board maintains a Code of Professional

Conduct for Non - Instructional Support Staff employed by the

Sarasota County Schoo l District, which provides:

The following shall constitute the

principles of professional conduct and ethics

for non - instructional support staff employed

by the School Board of Sarasota County.

Violation of any of these principles shall

subject the indi vidual to suspension,

termination and/or other penalties as

provided by law.

Obligation to the student requires that the

individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/or to the student's me ntal

and/or physical health and/or safety.

* * *

(c) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

34. Ms. Jones, as a non - instructional or administrative

employee under contract, is subject to the a bove - cited Florida

Statutes and the School Board's policy and Code of Professional

Conduct for Non - Instructional Support Staff employed by the

Sarasota County School District.

35. Undisputed evidence of record clearly demonstrated

that Ms. Jones violated the School Board's policy and Code of

Professional Conduct of Non - Instructional Support Staff.

Ms. Jones struck students on her bus on or about December 9,

2003. She used profanity in talking to students on her bus with

the intent to, and did, humiliate and embarrass those students to

whom she spoke.

36. The School Board has proven, by a preponderance of the

evidence, that Ms. Jones' violation of the School Board's policy

and Code of Professional Conduct for Non - Instructional Support

Staff employed by t he Sarasota County School District justified

her termination.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is, therefore,

RECOMMENDED that Petitioner, Sarasota County School Board,

enter a final order terminating the contractual employment of

Respondent, Nancy Jones.

DONE AND ENTERED this 19th day of August, 2004, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Appalachia 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 19th day of August, 2004.

COPIES FURNISHED :

Robert K. Robinson, Esquire

Bowman, George, Scheb, Toale

& Robinson

2750 Ringling Boulevard, Suite 3

Sarasota, Florida 34237

Nancy Jones

1280 Highland Street

Sarasota, Florida 34234

Gene Witt, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3304

Honorable Jim Horne

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 We st Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

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 sh ould be filed with the agency that

will issue the final order in this case.