04-004509 Lee County School Board vs. Patricia Banks Status: Closed Recommended Order on Friday, July 15, 2005.

Summary: Petitioner failed to prove that Respondent was knowingly involved in the theft of a computer from a Wal-Mart store.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4509

)

PATRICIA BANKS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on March 8, 2005, in Fort Myers, Florida, before Lawrence P.

Stevenson, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Lee County School

Board, may terminate Respondent, Patricia Banks', employment as

a school bus operator based upon the conduct alleged in the

Petition for Termina tion of Employment.

PRELIMINARY STATEMENT

On October 26, 2004, the Lee County School Board (the

"School Board") issued a Petition for Termination of Employment

(the "Petition") of Respondent, setting forth the allegations

justifying the termination of Res pondent's employment as a

school bus operator:

On or about September 20, 2004, the

Respondent was arrested for stealing a

computer at a Wal - Mart store while wearing

her District uniform. This constitutes

misconduct in office and conduct unbecoming

an empl oyee of the School District and as

such constitutes cause for her termination.

On November 4, 2004, counsel for Respondent filed a letter

with the School Board to contest the charges and request a

hearing. On December 16, 2004, the School Board suspended

Respondent without pay and benefits pending termination of

employment. On December 20, 2004, the School Board referred the

matter to the Division of Administrative Hearings ("DOAH") for

the assignment of an Administrative Law Judge and the conduct of

a f ormal hearing. The final hearing was scheduled for and held

on March 8, 2005.

At the hearing, the School Board presented the testimony of

David Heady, an employee of Wal - Mart who works in the

electronics department of the store on Colonial Boulevard in

F ort Myers; Terrell Russ, the supervisor of the electronics

department in the named Wal - Mart store; and Mickey Holman and

Bernard "Bo" Lee, loss prevention officers at Wal - Mart. The

School Board's Exhibits 1 through 6 and 10 through 11 were

admitted into e vidence. Respondent testified on her own behalf.

Respondent's Exhibits 1 through 8 were admitted into evidence.

Respondent also filed the depositions of Mr. Holman and Mr. Lee

for limited impeachment purposes.

A Transcript of the hearing was filed at DO AH on April 5,

2005. The parties filed their P roposed R ecommended O rders on

April 15, 2005.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing and the matters officially recognized, the following

findings are made:

1. The School Board is the governing body of the local

school district in and for Lee County, Florida.

2. Since October 31, 2001, Respondent has been employed by

the School Board as a school bus operator. Respondent's

employment with the School Board is gover ned by a collective

bargaining agreement between the Support Personnel Association

of Lee County and the School Board (the "SPALC Agreement").

3. In September 2004, Respondent was assigned to drive a

morning route and an afternoon route. Her morning rout e ended

at about 10:00 a.m., and her afternoon route commenced at about

1:30 p.m. Respondent's daughter, India Miller, also worked as a

school bus operator for the School Board.

4. On September 20, 2004, between her morning and

afternoon routes, Responde nt drove her daughter to the Wal - Mart

store on Colonial Boulevard in Fort Myers. Ms. Miller's car was

not running, and she was in the process of moving into a new

residence. She had asked Respondent to take her to Wal - Mart to

purchase cleaning supplies a nd to look into buying a new

computer. Respondent and Ms. Miller were wearing their School

Board bus driver uniforms.

5. Respondent parked her car in front of the store, but

near the garden department, which is on the side of the building

along with the automotive department. Respondent and Ms. Miller

entered the building through the front or "general merchandise"

("GM") entrance.

6. Respondent and Ms. Miller proceeded to the electronics

department to look at computers. They were assisted by David

Head y, a sales associate in the electronics department.

7. Mr. Heady testified that Respondent asked him several

questions about the functionality of a certain computer, an

eMachines desktop model priced at $698.00. Each woman said she

wanted one of the comp uters, but Mr. Heady had only one of them

on the floor. He put that one in a shopping cart for

Respondent, then proceeded to the storeroom to get a second

computer for Ms. Miller. When he returned with the second

computer, about three minutes later, Mr. Heady noticed that

Ms. Miller and the first computer were gone. Respondent told

him that Ms. Miller had taken the computer to the front of the

store to check out. This disturbed Mr. Heady because it is

Wal - Mart 's policy that all computers should be paid for in the

electronics department. Mr. Heady's suspicions were also

somewhat aroused by the fact that it was Ms. Miller who took the

first computer out of his department, when it was Respondent who

had asked for it.

8. According to Mr. Heady, Responden t started toward the

front of the store with the second computer, but Mr. Heady

stopped her and told her she had to pay for it in the

electronics department. Respondent paid cash for the computer,

a total of $739.88, then left the electronics department.

Mr. Heady then called the loss prevention office and spoke with

loss prevention officer , Bernard "Bo" Lee , to inform him that a

computer that had not been paid for had been removed from the

electronics department. He testified that he checked out

Respond ent before alerting loss prevention of the missing

computer because he did not want a confrontation with

Respondent. Mr. Heady also informed his supervisor in the

electronics department, Terrell Russ, about the missing

computer. Mr. Russ , in turn , made h is own call to loss

prevention and spoke with another loss prevention officer,

Mickey Holman.

9. Respondent testified that she and her daughter went

into the electronics department because her daughter wanted a

new computer. Respondent stated that she kn ows very little

about computers and that it was Ms. Miller who was asking

technical questions of Mr. Heady. Respondent did ask if

Mr. Heady had a second computer because she was interested in

placing one on layaway for her sons.

10. Respondent testifie d that there was no computer on the

floor of the electronics department. When her daughter told

Mr. Heady she wanted to buy the model under discussion, he had

to retrieve it from the storeroom. Respondent testified that

she waited for Mr. Heady to bring the computer while Ms. Miller

shopped for her cleaning supplies. Mr. Heady returned with the

computer and told Respondent that she would have to pay for the

computer before she could take it out of the electronics

department.

11. Respondent called Ms. Miller on her cell phone and

told her that she had to come back to the electronics department

to pay for the computer. Respondent also asked Ms. Miller if

she could afford to lend her the money to place a computer on

layaway. Ms. Miller responded that sh e would not know until she

completed her purchases. Respondent could not recall whether

Ms. Miller told her that she was coming back to purchase the

computer. Respondent left the electronics department and walked

to the in - store McDonalds to eat lunch. Finding the McDonalds

too crowded, she went outside to smoke a cigarette.

12. The one piece of documentary evidence available at the

hearing was the Wal - Mart receipt for the purchase of the

computer. The receipt indicates that the computer was purchased

with cash in the electronics department, though it does not

establish whether it was Respondent or Ms. Miller who made the

purchase.

13. Respondent's testimony agrees with that of Mr. Heady

on one point: Ms. Miller left the electronics department and

was separated from Respondent for at least several minutes.

M essrs. Lee , Holman, and Russ all observed Ms. Miller during the

time she was separated from Respondent.

14. Mr. Lee testified that he was patrolling the floors of

Wal - Mart to watch for shoplifter s. He noticed three black

women, including Ms. Miller and two unidentified women, placing

an eMachines computer in a shopping cart. Mr. Lee stated that

the eMachines computers were a "hot item , " and he, therefore ,

paid special attention when customers pl aced them in shopping

carts. Though he had seen Respondent with the other women in

the electronics department, Mr. Lee did not see her touch the

computer.

15. Mr. Lee stated that he followed Ms. Miller to the

front of the store. Respondent was still in the electronics

department. Mr. Lee observed Ms. Miller push the cart holding

the computer to the line of cash registers, through the line,

past the greeter who checked her receipt, and out the GM

entrance. Though he did not specifically observe Ms. Mil ler pay

for the computer at the front registers, Mr. Lee assumed that it

had been paid for because the greeter allowed her to leave the

store without incident.

16. From just inside the GM doors, Mr. Lee watched

Ms. Miller walk to a car in the front parkin g lot. Mr. Lee did

not see Ms. Miller load the computer into the car, but he did

observe her re - enter the store a few minutes later, without the

computer , but carrying a Wal - Mart receipt. He followed

Ms. Miller to the toy department, where she met Respon dent and

the two unidentified women standing near a shopping cart

containing a second eMachines computer.

17. Mr. Holman testified that after being radioed by

Mr. Russ that a computer had been taken from the electronics

department by one of two women in s chool bus driver uniforms, he

began searching the store. He observed Ms. Miller go through

the checkout area and past the greeter, who signaled that

Ms. Miller had a receipt for her computer. Mr. Holman radioed

to the electronics department and told them there was no

problem, that the woman had paid for the computer. The person

in electronics who answered told Mr. Holman that there was a

second computer. Mr. Holman went to look for the second

computer while Mr. Lee maintained his surveillance on

Ms. Mil ler.

18. Mr. Holman found the missing computer sitting in an

unattended shopping cart in the toy department. After a minute

or two, he saw Respondent approach the cart. Then, two other

women joined her , and they began talking. Mr. Holman stated

that Re spondent approached the cart several times, but did not

actually touch or take hold of it.

19. After a few minutes, Ms. Miller approached the group

of three women. Mr. Lee followed her and maintained his

surveillance apart from Mr. Holman. Both loss p revention

officers were out of earshot of the four women. Mr. Lee

recalled that Ms. Miller handed the receipt to Respondent at

that point, though they later passed it back and forth more than

once. After some conversation, the two unidentified women

walk ed away.

20. Ms. Miller began pushing the cart containing the

computer toward the automotive department called the "TLE" for

"Tire and Lube Express . " Respondent walked in front of the

cart. Mr. Lee noted that exiting through the TLE in the rear of

the store would require Respondent and Ms. Miller to walk around

the outside of the store to reach the front parking lot and that

exiting through the GM entrance would be much more convenient.

Mr. Lee testified that this behavior alone would have aroused

his suspicions.

21. The women guided the cart out through the TLE

entrance. Ms. Miller pushed the cart, and Respondent lifted the

front of the cart over the metal strip in the doorway. The

electronic article surveillance ("EAS") system did not sound an

ala rm. Mr. Lee testified that it is not unusual for the EAS

system not to sound, and he attached no significance to its

silence.

22. After the women were outside the store, Mr. Lee and

Mr. Holman approached and asked them to return to the store.

Ms. Miller told the men they had scared her. She said, "I

pissed myself [sic] ." Ms. Miller also told Mr. Lee that she had

a receipt for a computer. Mr. Lee found it significant that she

said "a computer , " rather than "this computer."

23. Mr. Lee and Mr. Holman e scorted the women to the loss

prevention office. Ms. Miller , ultimately , admitted to stealing

the computer. Respondent denied doing anything wrong and was

visibly upset when she was detained. In the loss prevention

office, Respondent called her employer on her cell phone to

arrange for someone to cover her afternoon bus route. None of

the Wal - Mart employees present in the loss prevention office

could recall Respondent's making any statement that could be

construed as incriminating.

24. The local police arrived, and both women were

arrested. Ms. Miller subsequently resigned her employment with

the School Board. At the time of the hearing, Respondent's

criminal case had not been resolved.

25. Again, Respondent told a different story. While she

was s moking her cigarette outside, Respondent began to worry

about finishing the shopping in time to drive her afternoon bus

route. She called Ms. Miller on her cell phone and asked how

much longer she would be in the store. Ms. Miller told

Respondent that sh e was paying for her merchandise and asked

Respondent whether she had seen her in - laws in the store.

Respondent said that she had not seen them and asked where they

were. Ms. Miller told her that she last saw them in the toy

department.

26. Respondent f inished her cigarette, then walked back

into Wal - Mart. She walked to the toy department and found her

relatives where Ms. Miller had last seen them. Respondent noted

that they had a computer in a shopping cart. One of the in - laws

told her that it was Ms . Miller's computer, and they were

waiting there for Ms. Miller to return.

27. Ms. Miller arrived, took control of the shopping cart,

and asked Respondent if she was ready to go. Respondent saw a

Wal - Mart receipt in her daughter's hand. Ms. Miller told

Respondent that she needed to buy something in the automotive

department. Ms. Miller pushed the cart toward the rear of the

store, where the TLE was located. When they reached the TLE,

Ms. Miller began asking questions of the sales associate.

Respondent interrupted her , saying they had to leave in order to

make their afternoon bus routes.

28. Ms. Miller pushed the cart out the TLE entrance, and

they were approached by M essrs . Holman and Lee , who told them

they needed to come back inside. Ms. Miller sai d, "Oh, shit.

You're gonna make me piss on myself." Respondent wondered why

Ms. Miller was reacting so strongly, if she had done nothing

wrong.

29. Respondent was adamant that she had no idea Ms. Miller

was attempting to steal a computer. Respondent believed

Ms. Miller had paid for the computer. Respondent testified that

she and Ms. Miller had both worked for Wal - Mart in the past, and

both knew that a customer is not allowed to take a computer from

the electronics department without paying for it. M s. Miller

apparently had a receipt for the computer. Respondent testified

that it never crossed her mind that Ms. Miller would steal a

computer ; that she believed her daughter "had better sense than

that."

30. Based upon the testimony of all the witnesse s,

including the deposition testimony of M essrs . Lee and Holman,

and the documentary evidence, it is found that the School Board

did not prove by a preponderance of the evidence that Respondent

stole a computer from Wal - Mart. The evidence certainly

demons trated that Respondent's daughter, Ms. Miller, attempted

to steal a computer. However, even if the testimony of the

School Board's witnesses were accepted in its entirety, no

witness definitively linked Respondent to the computer in such a

way as to demon strate her guilty knowledge that it was being

stolen.

31. The testimony of Mr. Holman cannot be credited. After

detaining Respondent and Ms. Miller, Mr. Holman prepared a

written report attesting that he observed Ms. Miller purchase a

computer in the ele ctronics department and take it to her car,

while Respondent selected another computer, put it in a shopping

cart, and took it to the toy department. In his pre - hearing

deposition, Mr. Holman testified that he saw Ms. Miller select

and pay for a computer in the electronics department. During

cross - examination during the final hearing, Mr. Holman conceded

that he witnessed none of these events.

32. Mr. Holman's efforts to explain his misleading

statements were unconvincing. He essentially stated that h is

reporting practice was to write a first - person narrative

commingling hearsay reports from other witnesses with his own

personal observations. Thus, when Mr. Holman wrote, "I observed

a female (India Miller) purchase a desktop PC in the electronics

[dep artment] , " he actually meant that Mr. Lee observed the

purchase and later told Mr. Holman about it. Mr. Holman's

testimony must be disregarded because the undersigned cannot

reliably distinguish between Mr. Holman's first - hand

observations and the hearsay statements that he adopted as his

own.

33. The testimony of the remaining witnesses conflicted on

key points. The evidence established that Mr. Heady was

confused as to the time of day during which the relevant events

occurred. Mr. Heady had no recolle ction of the two unidentified

black women whom Mr. Lee stated were with Respondent and

Ms. Miller in the electronics department. Mr. Lee stated that

he saw Ms. Miller and the two unidentified women put a computer

in a shopping cart. Mr. Heady testified t hat he placed the

computers in the shopping carts.

34. Mr. Heady testified that Respondent paid for the first

computer. However, he also testified that it was Respondent who

asked him technical questions about the computer's capabilities.

Respondent cre dibly testified that she is ignorant about

computers and that it was her daughter who was asking Mr. Heady

the technical questions. It is likely that Mr. Heady's

recollection was confused and that it was Ms. Miller who paid

for the first computer.

35. Re spondent's narrative of the relevant events was not

without its inconsistencies, but the burden was not on

Respondent to establish her innocence. Respondent's narrative

was credible as to the key point, that she did not know her

daughter was attempting to steal a computer from Wal - Mart. The

evidence presented by the School Board was insufficient to

demonstrate that Respondent ever gave any indication, through

her words or her actions, that she knew Ms. Miller had not paid

for the computer.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Section 120.569 and Subsections 120.57(1)

and 1012.40(2)(c), Florida Statutes (2004). 1/

37. The School Board has the burden to establish by a

preponderance of the evidence the grounds for disciplining

Respondent. See , e.g. , McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen

v. School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Dade County , 569 So. 2d 883, 884

(Fla. 3d DCA 1990).

38. Subsection 1012.40(2)(b), Florida Statutes, provides

that educational support e mployees , such as Respondent , may be

terminated only "for reasons stated in the collective bargaining

agreement."

39. The SPALC Agreement provides that any discipline "that

constitutes a reprimand, suspension, demotion or termination

shall be for just cau se." SPALC Agreement at Section 7.09. The

SPALC Agreement does not define "just cause" or provide for a

plan of progressive discipline.

40. In a previous case, the School Board adopted the

following Conclusions of Law, which is hereby adopted as the

rul e for the instant case:

27. The School Board construes "just cause"

in [then] Section 7.094 of the SPALC

Agreement in the same manner as that phrase

is used in Section 1012.33 relating to

instructional staff. That statute provides

in pertinent part that:

Just cause includes, but is not

limited to, the following

instances, as defined by rule

of the State Board of Education:

misconduct in office, incompetency,

gross insubordination, willful

neglect of duty, or conviction of a

crime involving moral turpitu de.

Section 1012.33(1)(a). See also Rule

6B - 4.009 (defining the terms used in Section

1012.33(1)(a)).

Lee County School Board v. Simmons , Case No. 03 - 1498 (DOAH

July 15, 2003)(adopted in toto by Final Order dated August 12,

2003).

41. Respondent di d not challenge the assertion that the

act of which she was accused, the theft of a computer from a

Wal - Mart store while wearing her School Board bus driver

uniform, would, if proven, constitute "misconduct in office"

sufficient to justify the termination of her employment with the

School Board.

42. The School Board failed to establish by a

preponderance of the evidence that Respondent stole a computer.

Respondent's explanation of the events in question was

plausible, if not utterly convincing. Ms. Mill er had taken the

computer out of the electronics department and had a receipt in

her hand. The School Board's evidence did not demonstrate that

Respondent had knowledge that her daughter was attempting to

steal the computer.

RECOMMENDATION

Based upon t he foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner, the Lee County School Board,

issue a final order dismissing the Petition for Termination of

Employment, reinstating the employment of Respondent , and

awarding her back pay and benefits retroactive to December 16,

2004.

DONE AND ENT ERED this 15th day of July , 2005 , 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 15th day of July , 2005 .

ENDN OTE

1/ Unless otherwise indicated, all citations are to Florida

Statutes (2004).

COPIES FURNISHED :

Jason L. Odom , Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Robert J. Coleman, Esquire

Coleman & Coleman

Post Of fice Box 2089

Fort Myers, Florida 33902 - 2089

Dr. James W. Browder, III

Superintendent of Schools

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3988

The Honorable John Winn

Commissioner of Education

Turlington Building, Suite 15 14

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West 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 should be filed with the agency that

will issue the final order in this case.