07-000194 Indian River County School Board vs. Andrea Mcgriff Status: Closed Recommended Order on Thursday, June 14, 2007.

Summary: Petitioner proved that Respondent endangered the safety and welfare of a student by encouraging and allowing other students to harass and humiliate him. Recommend that Respondent`s employment as a bus driver be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07 - 0194

)

ANDREA MCGRIFF , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hea ring was held in this case

on March 14, 2007, in Vero Beach , Florida, before Patricia M.

Hart, a duly - designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Amy J. Pitsch, Esquire

Brown, Garganese, Weiss & D'Agresta, P.A.

225 East Robinson Street, Suite 660

Post Office Box 2873

Orlando, Florida 32802 - 2873

For Respondent: Andrea McGriff, pro se

3479 44th Street

Vero Beach, Florida 32967

STATEMENT OF THE ISSUE

Whether the Petitioner should terminate the Respondent's

em ployment as a school bus driver for the reasons set forth in

correspondence dated December 14, 2006.

PRELIMINARY STATEMENT

In a letter dated December 14, 2006, Duncan N. P.

Pritchett, Jr., the Indian River County Superintendent of

Schools, notified Andrea McGriff that he intended to recommend

to the Indian River County School Board ("School Board") that

Ms. McGriff's employment as a bus driver with the School Board

be terminated. As explained in the letter, Dr. Pritchett based

his recommendation on his conclusion that she had "endangered

the health, safety, and welfare of students by failing to take

appropriate action and encouraging a fight between two students

on your bus." On December 19, 2006, Ms. McGriff requested a

hearing, and the School Board transmitted the matter to the

Division of Administrative Hearings for assignment of an

administrativ e law judge. 1 Pursuant to notice, the final hearing

was held on March 14, 2007.

At the hearing, the School Board presented the testimony of

Frank Harmer, Daniel McIntyre, and Duncan N.P. Pritchett;

Petitioner's Exhibits 1, 2, 4 through 6, and 8 through 11 were

offered and received into evidence. Ms. McGriff testified in

her o wn behalf, and Respondent's Exhibit s 1 and 2 were offered

and received into evidence. On March 5, 2007, the School Board

filed a Motion to Protect Student - Identifying Information

Pur suant to Florida Statutes Section 1002.22. This motion was

granted at the hearing as a preliminary matter.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on April 12, 2007, and

the parties timely filed proposed findings of fact and

conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. At all times material to this proceeding, Ms. McGriff

was employed as a school bus driver by the School Board. She

was hired for this position in 2003, and is on a continuing

contract. I n the four years since she began working as a bus

driver for the School Board she has had no disciplinary action

taken against her.

2 . As a bus driver, Ms. McGriff is classified as a n

educational support employee of the School Board 's Department of

Transportation pursuant to Section 1012.40, Florida Statutes

(2006). 2

3 . Ms. McGriff is a member of the Communication Workers of

America for Professional Support Employees ("CWA"), and the

School Board and the CWA have entered into a Collective

Bargaining Agreement ("Bargaining Agreement") that is effective

from July 1, 2005, through June 30, 2008.

4 . Article 13 C.2. of the Bargaining Agreement provides in

pertinent part :

Discipline and Termination of Professional

Support Staff on Annual or Continuous

Employment Status

Suspension and dismissal of professional

support staff personnel shall be conducted

in accordance with the procedures contained

below except that the Superintendent may

suspend members of the professional support

staff in an emergency.

a. With School Board approval, an employee

may be suspended without pay, discharged

and/or returned t o annual status, for

reasons including but not limited to the

following:

* * *

9. Endangering the health, safety or

welfare of any student or employee of the

District.

5 . At the times material to this proceeding, Ms. McGriff

was assigned as the driver of school bus number 69 , and she

regularly drove students attending Vero Beach High School to and

from school . Students C.C., P.K., and E. were a mong the

students who regularly rode on Ms. McGriff's school bus.

6 . On October 27, 2006, Ms. McGriff prepar ed a bus

referral to the assistant principal for student C.C. , in which

she stated that he had used inappropriate language while riding

school bus number 69.

7 . Frank Harmer, one of the assistant principal s in charge

of discipline at Vero Beach High Schoo l, received the referral

and met with student C.C. on October 31, 2006, to discuss his

conduct on the school bus on October 27, 2006. Mr. Harmer told

C.C. to stop using inappropriate language on the bus.

8 . During this conversation, C.C. told Mr. Harmer that he

had been previously harassed by students on the bus . Mr. Harmer

urged C.C. to report any future harassing behavior by students

to the school bus driver.

9 . In preparing for the meeting with C.C., Mr. Harmer

consulted the School Board's computer s ystem and learned that

C.C. is a child with an emotional handicap and that he receives

exceptional student education services from the School Board.

10 . On October 31, 2006, after speaking with student C.C.,

Mr. Harmer spoke with Ms. McGriff about the Oct ober 27, 2006,

referral and about his conversation with C.C. During this

conversation, Mr. Harmer told Ms. McGriff that C.C. was a

student with an emotional handicap and that she should ensure

that the other students did not harass him in the future.

Ms. McGriff indicated to Mr. Harmer that she would prevent any

future harassment.

11 . On the afternoon of November 3, 2006, at approximately

1:30 p.m., Ms. McGriff was waiting on school bus number 69 for

the end of classes and the arrival of the students who would

ride the bus home that afternoon. The conversation and ensuing

events that took place on school bus number 69 were recorded on

a surveillance video that was installed in the bus in accordance

with School Board policy to record the activities of the bus

driver and students.

12 . Student P.K. came onto the school bus before any of

the other students, and P.K. initiated a conversation with

Ms. McGriff about student C.C. During this conversation , which

took place at approximately 1:31 p.m. , Ms. McGriff referred to

C.C. as a "dumb ass ," and she complained to P.K. that C.C. got

away with "murder." Ms. McGriff also told P.K. that she did not

believe that C.C. was emotionally handicapped and that she

wanted him off of her bus.

13 . In this conversation, st udent P.K. told Ms. McGriff

that student C.C. had written P.K. a note telling P.K. that he

wanted to fight him. P.K. indicated that he might try to pick a

fight with C.C. on the bus that day and told Ms. McGriff to hold

a clipboard in front of the video c amera so the fight couldn't

be seen. Ms. McGriff told P.K. that she would hold a clipboard

up and would just continue driving if P.K. and C.C. got into a

fight.

14 . Student P.K. had with him a stack of signs containing

derogatory statements about student C.C. that he had prepared

and wanted to post on the bus. Ms. McGriff laughed and

encouraged P.K. to hang the signs on the wi ndows of the bus,

which he did. When P.K. asked if Ms. McGriff had any tape, she

told him that she did not but that she would giv e tape to him if

she had any. Ms. McGriff also told P.K. t hat she would try to

drive without laughing but that it would be difficult.

15 . At approximately 1:35 p.m., student E . came onto the

bus with a sign she had prepared that contained a derogatory

re mark about student C.C. P.K. and E. finished hanging the

signs, gave each other a "high five," and Ms. McGriff laughed.

16 . The other students began entering the school bus at

approximately 1:38 p.m. When student C.C. boarded the bus, he

saw the signs a nd tore down two of the m . Student P.K. re - hung

one sign and gave the other to C.C. C.C. sat in his seat with

his head down . P.K. took picture s of C.C. with his camera

phone , and Ms. McGriff chuckled.

17 . Ms. McGriff pulled the bus away from Vero Beach High

School at approximately 1:43 p.m. and began dropping off

students at their bus stops. When student C.C. rose to exit the

bus at his stop, student P.K. called out to him, "Bye Charles."

C.C. turned , walked back to P.K., and struck P.K. several times,

very quickly . C.C. then quickly left the bus.

18 . Ms. McGriff called and reported the fight to her

supervisor. She also thanked P.K. and told him: "I needed

that."

19 . Both students C.C. and P.K. received punishment in the

form of out - of - school suspe nsions as a result of the altercation

on the bus.

20 . Ms. McGriff admitted to having said things she should

not have said and to using poor judgment with regard to the

November 3, 2006, incident.

21 . Ms. McGriff endangered the safety and welfare of

stude nt C.C. on November 3, 2006, by allowing student P.K. to

harass and humiliate C.C. on school bus number 69 ; by

encouraging P.K. to harass and humiliate C.C. by laughing at

P.K.'s plans to hang derogatory signs and to start a fight with

C.C. ; by making dero gatory remarks to P.K. about C.C. herself ;

and by appearing to approve of P.K.'s plan to start a fight with

C.C. by promising to cover the video camera when the fight

started.

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdictio n over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 12 0.57(1),

Florida Statutes .

23 . Because this case is a proceeding to terminate

Ms. McGriff's employment with the School Board and does not

involve th e loss of a license or certification, the School Board

has the burden of proving the factual basis for termination by a

preponderance of the evidence. McNeill v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. School

Board of Dad e County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990);

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

DCA 1990).

24 . Section 1012.40, Florida Statutes, provides in

pertinent part:

(1) As used in this section:

(a) "Educational support employee " means

any person employed by a district school

system who is employed as a teacher

assistant, an education paraprofessional, a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

membe r of food service, a secretary, or a

clerical employee, or any other person who

by virtue of his or her position of

employment is not required to be certified

by the Department of Education or district

school board pursuant to s. 1012.39. This

section doe s not apply to persons employed

in confidential or management positions.

This section applies to all employees who

are not temporary or casual and whose duties

require 20 or more hou rs in each normal

working week.

(b) "Employee" means any person employe d as

a n educational support employee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through the

appropriate collective bargaining agreement

or by district school board rule in cases

where a collective barga ining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employee's status shall continue from year

to year unless the district school

superintendent terminates the employee for

reas ons stated in the collective bargaining

agreement, or in district school board rule

in cases where a collective bargaining

agreement does not exist, or reduces the

number of employees on a districtwi de basis

for financial reasons.

(c) In the event a dist rict school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice

and shall have the opportunity to formally

appeal the termination. The appeals pr ocess

shall be determined by the appropriate

collective bargaining process or by district

school board rule in the event there is no

collective bargaining agreem ent.

25. Article 22C.2.9. permits the School Board to suspend

an employee without pay, discha rge an employee, or return an

employee to annual status for "[e]ndangering the health, safety

or welfare of any student or employee of the District." Based

on the findings of fact herein, the School Board has proven by a

preponderance of the evidence that Ms. McGriff endangered the

safety and welfare of student C.C.

26 . In considering the appropriate penalty to be imposed

for Ms. McGriff's conduct, it is noted that Ms. McGriff has had

no other disciplinary action taken against her in the four years

she ha s been employed by the School Board as a school bus

driver.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Indian River County School Board

enter a final order f inding that Andrea McGriff endanger ed the

safety and welfare of student C.C. and terminating her

employment as a school bus driver.

DONE AND ENTERED this 1 4 th day of June , 2007, in

Tallahassee, Leon County, Florida.

S

___________________ ________________

PATRICIA M. HART

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 1 4 th day of June , 2007.

ENDNOTES

1 / It is noted that, in the transmittal letter to the Division

of Administrative Hearings dated January 15, 2007, the School

Board's attorney expanded the charge set forth in the

Superintendent's December 14, 2006, letter to Ms. McGriff t o

include "misconduct in office." The December 14, 2006, letter

stands as the statement of the charges against Ms. McGriff, and,

because this charge was not included in the Superintendent's

notice to Ms. McGriff, it will not be addressed in this

Recommend ed Order.

2 / All references to the Florida Statutes herein are to the 2006

edition unless otherwise noted.

COPIES FURNISHED:

Andrea McGriff

3479 44th Street

Vero Beach , Florida 32967

Amy J. Pitsch, Esquire

Brown, Garganese, Weiss & D’Agresta, P.A.

225 East Robinson Street, Suite 660

Post Office Box 2873

Orlando, Florida 32802 - 2873

Harry Davis, President

Communications Worker of America

Post Office Box 2426

Vero Beac h, Florida 32961 - 2426

Duncan Pritchett, Ed.D.

Interim Superintendent

Indian River School District

1990 25th Street

Vero Beach, Florida 32960 - 3395

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gain es Street

Tallahassee, Florida 32399 - 0400

Jeanine Blomberg, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

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 issu e the final order in this case.