04-004237 Pinellas County School Board vs. Minnie L. Moody Status: Closed Recommended Order on Friday, March 11, 2005.

Summary: Respondent does not meet minimum qualifications for her position. There is no provision in the collective bargaining agreement to extend employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4237

)

MINNIE L. MOODY, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 19, 2 005, an administrative hearing in this case

was held in Largo, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

Pinellas Count y School Board

301 Fourth Street, Southwest

Largo, Florida 33770

For Respondent: Frederick D. Winters, Union Representative

Service Employees International Union

Post Office Box 1015 7

St. Petersburg, Florida 33733 - 0157

STATEMENT OF THE ISSUE

The issue in the case is whether the Pinellas County School

Board may terminate the employment of Minnie L. Moody as a

school bus driver.

PRELIMINARY STATEMENT

By letter fro m Pinellas County School Superintendent Howard

Hinesley dated September 3, 2004, the Pinellas County School

Board (Petitioner) notified Minnie L. Moody (Respondent) that

Petitioner intended to terminate Respondent's employment as a

school bus driver. Acco rding to an attachment to the letter,

the grounds for the termination were that Respondent did not

meet the minimum education qualifications for employment as a

school bus driver. Respondent filed a request for hearing that

was forwarded to the Division o f Administrative Hearings, which

scheduled and conducted the proceeding.

Respondent was represented in this proceeding by the

president of her union, Frederick D. Winters. Mr. Winters is

apparently knowledgeable about union grievance proceedings;

howeve r, he was less knowledgeable about the requirements of

Florida Administrative Code Rule 28 - 106.016, governing persons

who represent a party in an administrative hearing. Although

Mr. Winters was not determined to be a "qualified

representative" as contemp lated by the Rule, Respondent was

clear in her desire to have Mr. Winters represent her during the

proceeding. Given the nature of the proceeding and the pattern

of cooperation between the parties, Mr. Winters was allowed to

represent Respondent in the he aring.

At the hearing Petitioner presented the testimony of six

witnesses, including Respondent, and had Exhibits numbered 1

through 28 admitted into evidence. Respondent testified on her

own behalf.

The one - volume Transcript of the hearing was filed on

February 9, 2005. Both parties filed Proposed Recommended

Orders.

FINDINGS OF FACT

1. Since 1996, Petitioner has employed Respondent,

initially in the Food Services Department and then as a "Plant

Operator."

2. Beginning on January 3, 2001, Respo ndent began working

for Petitioner in the Transportation Department as a school bus

driver.

3. Respondent is represented by a collective bargaining

unit of the Service Employees International Union (SEIU) with

whom Petitioner has entered into an agreeme nt.

4. Petitioner has adopted minimum qualifications an

applicant must meet to become employed as a school bus driver.

Although the job description has changed over a period of years,

at all times material to this case Petitioner's minimum

qualificatio ns for employment as a school bus driver required as

follows: "graduation from high school, possession of GED, or

must obtain a GED within one year of being hired."

5. A "GED" is a "general equivalency diploma" which can be

earned by persons completing a prescribed course of study and

passing a standard examination. The GED is generally regarded

as the equivalent of a high school diploma.

6. At the time Respondent began her employment as a school

bus driver, she did not meet the minimum qualification s because

she had not graduated from high school, did not possess a GED,

and was not within one year of obtaining a GED.

7. Pursuant to the collective bargaining agreement between

Petitioner and SEIU, a person not meeting the minimum

requirements for em ployment may work in a position as an

"intern" for a period of one year with a salary reduction of ten

percent below the applicable minimum. An employee seeking

employment as an intern enters into an "internship agreement"

with Petitioner. The purpose of the internship mechanism is

apparently to permit the employee an opportunity to complete

certain job - related requirements within the first year of the

employment.

8. In January 2001, Respondent executed a one - year

internship agreement with Petitioner. The agreement provided as

follows:

Internships are limited to one (1) year,

however; [sic] in some circumstances, the

Director of Personnel Relations, or

designee, may grant an extension on a case -

by - case basis.

9. In June 2001, Respondent entered int o an adult

education course to prepare for enrollment in a GED program.

10. Towards the end of 2001, Respondent sought and

received an internship extension of three months. Because

Respondent was attending educational classes, the request was

approved, and Respondent continued bus driving through the end

of the 2001 - 02 school year.

11. In the summer of 2002, Respondent was enrolled in

basic adult education classes. In August 2002, Respondent

sought an additional internship extension. The request was

approved, and Respondent drove a school bus for the 2002 - 03

school year.

12. In February 2004, Respondent was again enrolled in

basic adult education classes, and sought an additional

internship extension. The request was again approved, and

Responden t drove a school bus for the remainder of the 2003 - 04

school year.

13. Respondent suffered a family tragedy in April 2004

when her son passed away after a long illness.

14. By letter dated July 30, 2004, Petitioner advised

Respondent that her interns hip would expire on August 21, 2004,

and that she needed to complete the GED requirement prior to

that date. The letter also provided several options to pursue,

including other employment prospects with Petitioner, if the GED

was not obtained by the expir ation of the agreement.

15. The internship agreement between Petitioner and

Respondent expired on August 21, 2004, without Respondent's

obtaining the GED.

16. By letter dated September 3, 2004, Petitioner advised

Respondent that her employment was su spended for failing to meet

the minimum qualifications of the position for which she was

employed.

17. Because Respondent's progress toward obtaining the GED

has been minimal, Petitioner determined that the internship

agreement would not again be extend ed. Petitioner has no

written policy regarding how many times an internship agreement

can be extended. The witness testifying at the hearing

indicated that in determining whether to grant an internship

extension to Respondent, Petitioner considered Respo ndent's

progress towards completion of the academic goals as well as

personal factors, including the family illness.

18. Since June 2001, Respondent has worked towards, but

has not yet obtained, the GED. In order to obtain a GED a

student must complete basic education classes prior to entering

into the GED course of study. Respondent has worked to improve

her reading ability so as to provide skills sufficient to

support entry into the GED program, but her reading skill level

has shown no marked improve ment, and Respondent has not yet

begun the actual GED course of study.

19. There is no evidence that Respondent has not performed

her duties as a school bus driver in an acceptable manner.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearing s has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.569, Fla. Stat. (2004). 1

21. Petitioner has the burden of establishing the facts of

the case by a preponderance of the evidence sufficient to

warrant termination of Respo ndent's employment. McNeill v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996);

Dileo v. School Board of Dade County , 569 So. 2d 883 (Fla. 3d

DCA 1990). In this case, the burden has been met.

22. Petitioner has the authority to prescribe

qualifications for various employment positions. § 1012.22(1),

Fla. Stat. Petitioner has the authority to adopt rules

governing personnel matters. § 1012.23(1), Fla. Stat. The

school district superintendent has the responsibility to

recommend to Petit ioner the dismissal of employees under

appropriate circumstances. § 1012.27(5), Fla. Stat. Petitioner

has the responsibility to act upon the superintendent's

recommendation for dismissal. § 1012.22(1)(f), Fla. Stat.

23. Respondent is an educational support employee as

defined at Subsection 1012.40(1)(a), Florida Statutes, and is

represented by a labor organization. Under the circumstances of

this case, termination of Respondent's employment is governed by

a collective bargaining agreement between Pe titioner and the

SEIU unit representing Respondent. § 1012.40(2)(b), Fla. Stat.

24. Article 11, Section 1, of the bargaining agreement

provides that Petitioner may "take disciplinary action for just

cause for non - probationary employees as defined at Ar ticle 24,

Section 1." Article 24, Section 1, provides that termination of

the employee may occur for "just cause" as defined by School

Board Policy 8.25.

25. School Board Policy 8.25(1)(x) provides as follows:

8.25 DISCIPLINARY GUIDELINES FOR EMPLOYEES

(1) The school district generally follows a

system of progressive discipline in dealing

with deficiencies in employee work

performance or conduct. Progressive

discipline may include, but is not limited

to, verbal or written counseling or caution,

writte n reprimand, suspension without pay

and dismissal. The severity of the problem

or employee conduct will determine whether

all steps will be followed or a

recommendation will be made for suspension

without pay or dismissal. When there is a

range of penalt ies, aggravating or

mitigating circumstances will be considered.

Support Services probationary employees sign

an "At Will" statement that says: During

the probationary period the employee will

not be eligible for certain benefits as

defined by the applic able collective

bargaining agreement and may be terminated

at the will and discretion of the Pinellas

County School Board without advance notice

or a right to a hearing. The following

offenses, when constituting grounds for

discipline under Section 231.36 , Florida

Statutes, shall have the following

penalties:

OFFENSE PENALTY

(x) Failure to Comply Caution - Dismissal

With School Board Policy,

State Law, or Appropriate

Contractual Agreement.

26. Petitioner has adopted job descriptions setting forth

minimum qualifications for the various positions required to

operate the local school system. In this case, the evidence

establishes that Respondent does not meet the minimum

qualifications for the position in which she has been employed.

27. At the h earing, Petitioner offered evidence related to

the need for school bus drivers to have adequate reading and

writing skills in order to read and complete various forms.

Respondent asserted that there are currently employed school bus

drivers who are unable to read or write. Petitioner noted that

drivers hired before the relevant job description was amended to

require a diploma or a GED were "grandfathered" and therefore

were not required to meet the standard.

28. The issue in the case is not whether Res pondent can

read or write. Although one may hope that a person with a GED

can read and write, the applicable job description does not

require that a prospective employee have such skills, but simply

requires that an applicant produce an academic credentia l which

Respondent does not have. The issue of whether the job

description is appropriate to the requirements of the job is not

properly raised in this forum.

29. Respondent has raised an issue related to the number

of internship extensions an employee can receive. At the

hearing, Respondent asserted that the quoted language permitted

only one extension of the internship agreement. In its Proposed

Recommended Order, Respondent appears to suggest that because

Petitioner granted additional requests for extension beyond the

first extension, Petitioner is now required to approve

additional extension requests. The evidence fails to establish

that there is any authorization in the collective bargaining to

extend an internship agreement.

30. Article 13, S ection 4(b), of the bargaining agreement

provides as follows:

Intern procedures: An applicant who does

not meet all minimum qualifications for a

job may be hired as or promoted to an intern

at a rate of pay ten percent (10%) below the

applicable rate of p ay for that position.

Payment at the intern rate is not to exceed

one (1) year.

31. Although nothing in the bargaining agreement indicates

that an employee may be paid at the intern rate beyond the

initial one - year period of employment, the internship a greements

between the parties provide that "in some circumstances, the

Director of Personnel Relations, or designee, may grant an

extension on a case by case basis."

32. The School District's Director of Personnel Relations,

who approved Respondent's re quests for internship extensions,

testified at the hearing, and opined that he had the authority

to extend an internship beyond a one - year period. There is no

provision in the collective bargaining agreement that confers

such authority on the witness or o n any other School District

employee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner enter a final order terminating

Respondent's employment as a school bus driver.

DONE AND ENTERED th is 11th day of March, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 11th day of March, 2005.

ENDNOTE

1/ All citations are to Florida Statutes (2004) unless

otherw ise indicated.

COPIES FURNISHED :

Thomas L. Wittmer, Esquire

Pinellas County School Board

301 Fourth Street, Southwest

Largo, Florida 33770

Minnie L. Moody

2619 21st Place, Southwest

Largo, Florida 33774

Frederick D. Winters

Service Employees Inter national Union

Post Office Box 10157

St. Petersburg, Florida 33733 - 0157

Dr. Clayton M. Wilcox, Superintendent

Pinellas County School Board

Post Office Box 2942

Largo, Florida 33779 - 2942

Daniel J. Woodring, General Counsel

Department of Education

325 W est Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Honorable John Winn, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.