09-006152TTS Palm Beach County School Board vs. Aikeea Howell Status: Closed Recommended Order on Tuesday, March 23, 2010.

Summary: Petitioner established that Respondent was grossly inattentive while on duty and that therefore her termination was justified under the collective bargaining agreement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-6152

)

AIKEEA HOWELL, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Section 120.57(1), Florida Statutes, on January 22,

2010, by video teleconference at sites in West Palm Beach and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Sonia E. Hill-Howard, Esquire

Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

For Respondent: Aikeea Howell, pro se

5145 Caribbean Boulevard, Apt. 1027

West Palm Beach, Florida 33407

STATEMENT OF THE ISSUE

Whether Respondent's employment should be terminated for

the reasons set forth in the Petition for Suspension Without Pay

and Dismissal from Employment.

PRELIMINARY STATEMENT

By letter dated September 29, 2009, the Palm Beach County

Superintendent of Schools notified Respondent that, at the

October 14, 2009, meeting of the Palm Beach County School Board

(School Board), he would be recommending to the School Board

that it terminate Respondent's employment as a school bus

attendant. The letter further advised Respondent of her right

to "request[] a hearing before the Division of Administrative

Hearings (DOAH)." Respondent subsequently requested such a

hearing. On November 9, 2009, the matter was referred to DOAH

for the assignment of an administrative law judge to conduct the

hearing Respondent had requested. Among the documents

transmitted to DOAH by the School Board was a Petition for

Suspension Without Pay and Dismissal from Employment (Petition)

prepared by the School Board's counsel of record and served on

Respondent. The Petition alleged that Respondent's record of

inattentiveness while on duty warranted her termination.

As noted above, the final hearing in this case was held on

January 22, 2010. Four witnesses testified at the hearing:

Respondent, Yevola Falana, George Pratt, and Angelette Green.

In addition to the testimony of these four witnesses, the

following exhibits were offered and received into evidence:

Petitioner's Exhibits 1, 3 through 12, 14, 15A, 15B, and 16

through 22.

After the close of the evidentiary portion of the hearing,

the undersigned, on the record, established a deadline (20 days

from the date of the filing of the hearing transcript with DOAH)

for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on February 8, 2010.

On March 1, 2010, the School Board filed a motion

requesting that the proposed recommended order deadline be

extended until April 2, 2010. On March 2, 2010, the undersigned

issued an order extending the deadline, but only to March 18,

2010.

On March 18, 2010, the School Board filed its Proposed

Recommended Order. To date, Respondent has not filed any post-

hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at the final hearing, and the

record as a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control, and supervision of all public school operations in Palm

Beach County.

2. Respondent has been employed by the School Board as a

school bus attendant since January 25, 2006. She is currently

under suspension pending the outcome of these proceedings.

3. As a school bus attendant employed by the School Board,

Respondent is a member of a collective bargaining unit

represented by the SEIU/Florida Public Services Union (SEIU) and

covered by a collective bargaining agreement between the School

Board and SEIU (SEIU Contract).

4. Article 7 of the SEIU Contract is entitled, "Employees

Contractual Rights." Section 2 of this article provides as

follows:

1. Upon successful completion of the

probationary period by the employee, the

employee status shall be continuous unless

the Superintendent terminates the employee

for reasons stated in Article 17 -

Discipline of Employees (Progressive

Discipline).

2. In the event the Superintendent seeks

termination of a continuous employee, the

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 process shall be

determined in accordance with Article 17 -

Discipline of Employees (Progressive

Discipline).

5. Article 8 of the SEIU Contract is entitled, "Management

Rights," and it provides, in pertinent part, that the School

Board has the right "to manage and direct its employees,

establish reasonable rules and procedures, take disciplinary

action for proper cause, and relieve its employees from duty

because of lack of work or for other legitimate reasons."

6. As is its right under Article 8 of the SEIU Contract,

the School Board has established requirements for its school bus

attendants. These requirements are set forth in a School Bus

Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed

to each and every school bus driver and school bus attendant

employed by the School Board.

7. The SDSBA Handbook provides, in pertinent part, as

follows:

X. Transportation of Exceptional Students

by School Bus Drivers and Bus Attendants

* * *

B. Bus attendant shall be assigned to ESE

routes when necessary and when

possible. . . .

* * *

D. The ESE Bus Attendant

* * *

2. . . . . His regular assigned seat

should be at the rear of the bus to

facilitate student observation and behavior

management.

3. Assists the bus driver, parents, and

school personnel in loading and unloading

students at bus stops and school centers, as

necessary and as directed. . . .

5. Assists the bus driver and students in

following the school bus rules and

procedures.

* * *

7. Assures that all seat belts, wheelchair

securements, and occupant restraints are put

away or locked in the seats when not in use

to avoid safety hazards.

8. Shall be alert to student passenger

needs at all times, getting up to assist

students in route, providing directions to

students, and maintaining order. However,

unless attending to a student's needs, the

attendant shall remain seated at the rear of

the bus when the bus is in motion.

* * *

11. Performs other relevant duties as

required, such as securing wheelchairs,

securing students in their occupant

restraints, cleaning up students, helping

the driver clean up the bus, putting windows

up and down, safely securing carry-on items,

securing wheelchair trays, and assisting the

driver in performing the Pre-Trip and Post-

Trip Inspections.

* * *

14. Shall be thoroughly familiar and

perform in accordance with the training

Handbooks of this School District: School

Bus Drivers and Bus Attendants Handbook ; and

Special Needs Student Transportation Bus

Drivers and Bus Attendants Handbook .

8. The Special Needs Student Transportation Bus Drivers

and Bus Attendants Handbook, which is referenced in the SDSBA

Handbook, stated the following, among other things, regarding

the job responsibilities of "ESE Bus Attendants":

Overview of the Job of the Bus Attendant

. . . . The Bus Attendant assists the Bus

Driver with bus cleanliness, emergency

situations, pre-trip and post-trip bus

safety inspections, and knowing the route.

* * *

Preparing for Daily Trips

* * *

- Check the wheelchair securement and

occupant restraints for proper

functioning. . . .

- Help the Bus Driver perform the pre-trip

inspections.

- Help the Bus Driver clean up the bus.

* * *

- Safely secure any loose items. Make sure

that seat belts, wheel chair securements,

and occupant restraints are put away or

locked in the seats when not in use in order

to avoid hazards.

Working with Students

A major duty that is required of a Bus

Attendant is to care for students while they

are on the bus. This means that you are to

get out of your seat as necessary to be sure

that students are safe, following the bus

rules, and are not in any physical, health,

or medical danger . You also must assist the

Bus Driver, parents, and school personnel

with loading and unloading of students at

bus stops and school centers. You will do

this as necessary and as directed.

Specifically Bus Attendants must:

- Assist all pre-school students up and

down the bus stairwell.

- Assist physically impaired students up

and down the bus stairwell.

- Help any student who needs your

assistance getting onto/off the bus.

- Open and close the bus lift door and

assist students who are in a wheelchair

onto/off the lift in the absence of a parent

or school person, or when a parent/guardian

cannot help due to extenuating

circumstances.

- Operate the wheelchair lift.

- Secure wheelchairs, and secure students

in their occupant restraint systems.

- Clean up students and the bus when

students have soiled themselves.

- Help the students to follow the bus rules

and procedures.

- Be alert to student passenger needs at

all times. Give assistance to students,

provide direction to them and help to

maintain order on the bus.

* * *

- Where you place yourself on the bus is

important. It is generally recommended that

a Bus Attendant sit at the back of the bus,

which allows you to watch the students in

front of you. . . .

9. Article 17 of the SEIU Contract addresses "[d]iscipline

of [e]mployees" and provides as follows:

1. Without the consent of the employee and

the Union, disciplinary action may not be

taken against an employee except for just

cause, and this must be substantiated by

clear and convincing evidence which supports

the recommended disciplinary action.

2. All disciplinary action shall be

governed by applicable statutes and

provisions of the Agreement. Further, an

employee shall be provided with a written

charge of wrongdoing, setting forth the

specific charges against that employee as

soon as possible after the investigation has

begun.

3. Any information which may be relied upon

to take action against an employee will be

shared promptly with said employee and

his/her Union representative as soon as

possible. Copies of any written

information/correspondence that is related

to the action of the employee or the

investigating administrator(s) will be

provided promptly to the employee and

his/her Union representative.

4. An employee against whom action is to be

taken under this Article and his/her Union

representative shall have the right to

review and refute any and all of the

information relied upon to support any

proposed disciplinary action prior to taking

such action. To this end, the employee and

the Union representative shall be afforded a

reasonable amount of time to prepare and

present responses/refutations concerning the

pending disciplinary action and concerning

the appropriateness of the proposed

disciplinary action. This amount of time is

to be mutually agreed upon by the parties.

5. Only previous disciplinary actions which

are a part of the employee's personnel file

or which are a matter of record as provided

in paragraph #7 below may be cited if these

previous actions are reasonably related to

the existing charge.

6. Where just cause warrants such

disciplinary action(s) and in keeping with

provisions of this Article, an employee may

be reprimanded verbally, reprimanded in

writing, suspended without pay, or dismissed

upon the recommendation of the immediate

supervisor to the Superintendent and final

action taken by the District. Other

disciplinary action(s) may be taken with the

mutual agreement of the parties.

7. Except in cases which clearly constitute

a real and immediate danger to the District

or the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable School

Board rules and regulations, progressive

discipline shall be administered as follows:

(A) Verbal Reprimand With A Written

Notation. Such written notation shall be

placed in the employee's personnel file and

shall not be used to the further detriment

of the employee, unless, there is another

reasonably related act by the same employee

within a twenty four (24) month period.

(B) Written Reprimand. A written reprimand

may be issued to an employee when

appropriate in keeping with provisions of

this Article. Such written reprimand shall

be dated and signed by the giver of the

reprimand and shall be filed in the affected

employee's personnel file upon a receipt of

a copy to the employee by certified mail.

(C) Suspension Without Pay. A suspension

without pay by the School Board may be

issued to an employee, when appropriate, in

keeping with provisions of this Article,

including just cause and applicable laws.

The length of the suspension also shall be

determined by just cause as set forth in

this Article. The notice and specifics of

the suspension shall be placed in writing,

dated, and signed by the giver of the

suspension and a copy provided to the

employee by certified mail. The specific

days of suspension will be clearly set forth

in the written suspension notice which shall

be filed in the affected employee's

personnel file in keeping with provisions of

Chapter 119 and 231.291 of the Florida

Statutes.

(D) An employee may be dismissed when

appropriate in keeping with provisions of

this Article, including just cause and

applicable law.

8. An employee against whom disciplinary

action(s) has/have been taken may appeal

through the grievance procedure. However,

if the disciplinary action(s) is/are to be

taken by the District, then the employee

shall have a choice of appeal between either

the Department [sic] of Administrative

Hearings in accordance with Florida Statutes

or the grievance procedure outlined in the

collective bargaining agreement. Such

choice must be exercised within fifteen (15)

days of receipt of written notification of

disciplinary action being taken, and the

District notified accordingly. If the

grievance procedure is selected, the

grievance shall be initiated at Step Three.

10. Respondent has been disciplined by the School Board on

previous occasions for failing to properly perform her job

duties as an ESE school bus attendant.

11. On August 26, 2008, Respondent received a verbal

reprimand with written notation "for failing to ensure the

safety and well-being of students under [her] care as a bus

attendant." The letter advising her of such disciplinary action

read as follows:

This correspondence is being given to you as

a verbal reprimand with written notation for

failing to ensure the safety and well-being

of students under your care as a bus

attendant. Specifically, on June 6, 2008,

during your pre-disciplinary meeting you

stated that you take a nonprescription

medication that makes you sleepy.

Furthermore, the review of two (2) videos

from buses that you served as an attendant

revealed you were asleep and not seated in

the rear of the bus while students were

being transported. Additionally, these acts

w[ere] confirmed by Ms. Evangelina Patterson

who stated that you have fallen asleep on

every route that you served as an attendant

on her bus.

Your conduct reflects a failure to exercise

the best professional judgment. In

addition, you compromised the safety and

well-being of a student that you were

responsible for monitoring by failing to be

alert and properly positioned to carry out

your duties as an attendant. This behavior

is not permissible according to The School

District of Palm Beach County,

Transportation Department School Bus Drivers

and Bus Attendants Handbook, Sec. X D.8 and

Special Needs Student Transportation Bus

Drivers and Attendants Handbook Chapter II .

Furthermore, you are directed to desist from

engaging in the same or similar actions in

the future. Failure to do so will result in

further disciplinary action, up to and

including termination . This letter of

verbal reprimand with written notation will

be placed in your District personnel file.

Please be advised that the above referenced

case and related investigative file is

considered to be closed. Pursuant to

Section 1012.31, Florida Statutes, when an

investigation is concluded, all materials

related to the investigation shall be

treated as a public record, subject to

disclosure upon request, minus any allowable

exemptions. In addition, you have the right

to inspect this public record and to submit

any written rebuttal information for

enclosure into the public record within ten

days after receipt of this letter.

12. On October 28, 2008, Respondent was given a written

reprimand "for failing to ensure the safety and well-being of

students under [her] care as a bus attendant." This written

reprimand was in the form of a letter, which read as follows

This correspondence is being given to you as

a written reprimand for failing to ensure

the safety and well-being of students under

your care as a bus attendant. Specifically

on October 22, 2008, during your pre-

disciplinary meeting you stated that you

were not fully alert while serving as an

attendant on Route E536. Furthermore, a

review of the video from this bus revealed

that you were asleep while students were

being transported.

Your conduct reflects a failure to exercise

the best professional judgment. In

addition, you compromised the safety and

well-being of a student that you were

responsible for monitoring by failing to be

alert and properly positioned to carry out

your duties as an attendant.. This behavior

is not permissible according to The School

District of Palm Beach County,

Transportation Department School Bus Drivers

and Bus Attendants Handbook, Sec. X D.8 and

Special Needs Student Transportation Bus

Drivers and Attendants Handbook Chapter II .

Furthermore, you are directed to desist from

engaging in the same or similar actions in

the future. Failure to do so will result in

further disciplinary action, up to and

including termination . This written

reprimand will be placed in your District

personnel file.

Please be advised that the above referenced

case and related investigative file is

considered to be closed. Pursuant to

Section 1012.31, Florida Statutes, when an

investigation is concluded, all materials

related to the investigation shall be

treated as a public record, subject to

disclosure upon request, minus any allowable

exemptions. In addition, you have the right

to inspect this public record and to submit

any written rebuttal information for

enclosure into the public record within ten

days after receipt of this letter.

13. Notwithstanding (and in brazen disregard of) the

reasonable directive contained in this written reprimand that

she "desist from engaging in the same or similar actions in the

future," less than three months later, on the morning of

January 22, 2009, Respondent was once again inattentive while on

duty as an ESE school bus attendant.

14. The bus to which she was assigned that morning was Bus

#0691, which was driven by Evangelina Patterson. There was an

operational video camera (with audio), mounted in the front of

the interior of the bus, which captured what occurred on the bus

that morning.

15. At 8:08 a.m., Bus #0691 arrived at the school to which

the three students then on the bus were being transported. The

students unfastened their seat belts, got out of their seats,

and exited the bus. Instead of escorting the students off the

bus, Respondent stayed in her seat, put her jacket over her

face, and leaned her head against the window in an admitted

effort to get some rest. She remained essentially in this

position for at least the next 18 minutes, keeping her jacket

over her face the entire time, except for a brief moment (at

approximately 8:16 a.m.) when, startled by a tap on the leg from

the driver, Ms. Patterson, who was trying to rouse her, she

temporarily removed the jacket. During this 18-minute period,

without Respondent's assistance, Ms. Patterson did her post-trip

inspection and readied the bus for its next trip that morning.

16. On this next trip, the bus picked up three students

and transported them to their high school. For at least the

last seven or eight minutes of the trip, none of the three

students was wearing a seat belt, a situation that Respondent

did nothing, during that time period, to try to correct.

17. One of the three unbelted students (seated three rows

in front of Respondent) had his back facing the window and his

left lower leg and foot in the aisle. The student's book bag

was also in the aisle, immediately next to his left foot, so

that the entire width of the aisle was blocked.

18. For almost all of this seven or eight-minute period at

the end of the trip, Respondent's eyes were closed and her head

was bobbing back and forth. She had no interaction with the

students on the bus. After the bus arrived at the school,

Respondent walked behind the students as they exited the bus.

As she passed by the camera in the front of the bus, Respondent

looked like she had just woken up, with her eyes appearing to be

adjusting to the light.

19. Respondent has demonstrated, through her actions, that

she cannot be depended upon to be alert and attentive at all

times while on duty and to otherwise discharge her job

responsibilities as a school bus attendant in a manner that will

ensure the safety of the students in her care and that will not

expose the School Board to liability. Consequently, her

continued employment as a school bus attendant constitutes a

real and immediate danger to the School Board.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto.

21. "In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 1001.32(2), Fla. Stat.

22. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §

1001.42(5), Fla. Stat. ("The district school board, acting as a

board, shall exercise all powers and perform all duties listed

below: PERSONNEL.--. . . provide for the . . . suspension, and

dismissal of employees subject to the requirements of chapter

shall suspend, dismiss, or return to annual contract members of

the instructional staff and other school employees."); and §

1012.23(1), Fla. Stat. ("Except as otherwise provided by law or

the State Constitution, district school boards may adopt rules

governing personnel matters, including the assignment of duties

and responsibilities for all district employees.").

23. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." § 447.203(2), Fla. Stat.

24. As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and relieve its

employees from duty because of lack of work or for other

legitimate reasons." § 447.209, Fla. Stat.

25. Where the employee is an "educational support

employee" who has successfully completed his or her probationary

period and the adverse action sought to be taken against the

employee is termination, the district school board must act in

accordance with the provisions of Section 1012.40, Florida

Statutes, which provides as follows:

(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

member 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 does 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 hours in each normal

working week.

(b) "Employee" means any person employed as

an 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 bargaining 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

reasons 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 districtwide basis

for financial reasons.

(c) In the event a district 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 process

shall be determined by the appropriate

collective bargaining process or by district

school board rule in the event there is no

collective bargaining agreement.

26. Respondent is an "educational support employee,"

within the meaning of Section 1012.40, Florida Statutes, who is

covered by a collective bargaining agreement (the SEIU

Contract).

27. Pursuant to Section 1012.40, Florida Statutes,

Respondent's employment may be terminated only "for reasons

stated in th[is] collective bargaining agreement."

28. Under the SEIU Contract, "disciplinary action may not

be taken against an employee except for just cause, and this

must be substantiated by clear and convincing evidence."

Moreover, absent compelling circumstances, the action taken must

be consistent with "progressive discipline."

29. At the final hearing in the instant case, the School

Board clearly and convincingly established that, on the morning

of January 22, 2009, while serving as an ESE school bus

attendant aboard Bus #0691, Respondent was, for significant

periods of times, grossly inattentive to what was happening on

the bus, contrary not only to School Board policy (of which

Respondent had been made aware), but also to supervisory

directives given her in conjunction with prior disciplinary

action taken against her for the same dereliction (the

August 26, 2008, verbal reprimand with written notation and the

October 28, 2008, written reprimand).

30. Having made such a clear and convincing showing, and

having further established that a real and immediate danger is

posed by its continuing to employ a school bus attendant, like

Respondent, who has proven not to be reliably attentive while on

duty, the School Board has met its burden of demonstrating that

there are grounds to terminate Respondent's employment under the

SEIU Contract.

31. Accordingly, Respondent's appeal of her proposed

termination must be rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the School Board issue a final order

sustaining Respondent's suspension and terminating her

employment with the School Board.

DONE AND ENTERED this 23rd day of March, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of March, 2010.

COPIES FURNISHED:

Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Aikeea Howell

5145 Caribbean Boulevard, Apt. 1027

West Palm Beach, Florida 33407

Dr. Arthur C. Johnson

Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

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 issue the final order in this case.