10-004490TTS Volusia County School Board vs. Tamika Whitaker Status: Closed Recommended Order on Friday, December 3, 2010.

Summary: School Board had just cause to terminate employment of bus driver who was using cell phone for calls and texts while driving school bus.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOLUSIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10 - 4490

)

T AMIKA WHITAKER , )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case via video

teleconferencing on September 20 , 20 10 , with sites in Daytona

Beach and Tallahassee , Florida, before Barbara J . Staros ,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCE S

For Petitioner: Erin G . J ackson , Esquire

Thompson, Sizemore Gonzalez ,

& Hearing, P.A.

Post Office Box 639

Tampa , Florida 3 3 602

For Respondent: Marc Aaron Sugerman , Esquire

AFSCME Council 79

2738 North Forsyth Road

Winter Park , Florida 3 2792

STATEMENT OF THE ISSUE

The issue is whether Respondent 's employment should be

terminated by Petitioner .

PRELIMINARY STAT EMENT

In a letter dated June 1 7 , 20 10 , Greg Akin , Director of

Student Transportation Services of Volusia County School

District (the "District") advised Respondent , Tamika Whitaker

(Respondent) , that s he would be terminated effective the date of

the letter. The letter referenced a Statement of Charges signed

by Margaret A. Smith, D.Ed., Superintendent of Schools , which

charged Respondent with failure to maintain a safe atmosphere

for students by using a cell phone to create and send text

messages whi le operating a school bus transporting students;

talking on a cell phone while operating a school bus; engaging

in activity which caused her view of the road to be obscured

while operating a school bus with students on board; and parking

a school bus at a n unauthorized location, while on duty and in

paid status, for an extended period of time while talking on a

cell phone. The Statement of Charges alleges that these acts

constitute a violation of School Board Policy 418, and Stude n t

Transportation Service s Responsibility Procedures Nos. 2.6 and

3.24. Superintendent Smith also informed Respondent in the

Statement of Charges that she intended to recommend the

termination of Respondent's employment to the Petitioner Volusia

County School Board ( School Board ) .

Mr. Akin's letter informed Respondent of her right to

contest the termination through using the grievance procedure or

by requesting a hearing. I n a letter dated J u ne 20 , 20 10 ,

Respondent requested a n administrative hearing . O n or about

J uly 1 , 20 10 , the School Board referred the case to the Division

of Administrative Hearings.

A Notice of Hearing on was issued on Ju l y 16 , 20 10,

scheduling the hearing for September 2 0 , 2010. The case was

transferred to the undersigned and an Amended Notice of H earing

was issued on September 17, 2010, notifying the parties that the

hearing would be held by video teleconference. The case was

heard as scheduled.

At hearing, Petitioner presented the testimony of Patricia

Rush, Greg Akin, and Tamika Whitaker. Pe titioner offered

E xhibits 1, 2, 4 - 10, 12, 19, 20, 24, and 27, which were admitted

into evidence .

Respondent testified on h er own behalf and presented the

testimony of Regina Hayes and Joseph Zaffuto . Respondent

offered E xhibits 1 through 6 , which were admitted into evidence.

A o ne - volume Transcript was filed on October 1 5 , 20 10 . The

parties filed a Joint Motion for Extension of Time for Filing

Proposed Recommended Orders, which was granted.

The parties timely filed Proposed Recommended Orders which

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding , the School

Board was the constitutional entity authorized to operate,

control, and supervise the public schools in Volusia C ounty,

Florida .

2 . Respondent , Tamika Whitake r, began working as a bus

driver for the School Board in 200 2 . A t all times relevant to

the allegations in the Superintendent's Statement of Charges,

Respondent was assigned to the bus route of Riverview Le arning

Center .

3 . In order to be employed as a school bus operator,

Respondent had to undergo sixty hours of initial training,

consisting of thirty - two hours of classroom training reviewing

rules, policies, and procedures, and twenty - eight hours of

training on the school bus.

4 . Respondent wa s also required to obtain a Class B

commercial driver's license (CDL) with a passenger endorsement .

This allows the bus operator to drive a bus that is

approximately 40 feet long and 10 feet wide, weighs 24,000 to

26,000 pounds unloaded, and can carry approximately 77

passengers.

5 . School bus operators are required to know and abide by

all federal and state laws, rules, and regulations pertaining to

operating school buses, as well as all policies, practices, and

procedures of the School Board. During her initial training,

Respondent was provided a copy of the School Board's Student

Transportation Services Procedural M anual and was trained

regarding the procedures therein. Each time a change is made to

the Manual, bus drivers are provided copies of the changes.

6. In addition to her initial training, p ursuant to

Florid a Department of Education rules, Respondent was required

to complete eight hours of recertification training every year.

The recertification training is designed to educate

transportation staff on any new laws, rules, and regulations,

and on policies, practices, and procedures of the School Board.

7 . At the March 2010 recertification training, changes to

U.S. Department of Transportation 's interpretation of federal

regulations were discussed . Under the revised interpretation,

texting while driving would be prohibited . 1 /

8 . On May 4, 2010, Respondent's afternoon bus route was

completed approximately 40 minutes later than usual. Because

such a delay is unusual, the School Board investigated the delay

pursuant to standard practices. This included review of the GPS

report for the bus Respondent was driving, review of the video

for the bus, and inquiry to the Student Transportation Services

dispatch office.

9 . Greg Akin is the Director of Student Transportation

Services for the School Board. He asked Patricia Rush, lea d

driver at the New Smyrna terminal, to review bus video of

Respondent from her May 4, 2010 , route to determine the cause

for Respondent's delay.

10 . By accident, Ms. Rush watched a video from a different

day, and saw actions of Respondent wh ich M s. Rush determine d to

be unsafe. Specifically, Ms . Rush described what she saw,

"driving with no hands . . . driving with her elbows . . . using

the cellular telephone . . . drinking out of a mug. There were

students on board. I was just kind of shocked that she was

doing that."

11 . Ms. Rush's concern regarding the use of the mug was

that it was a large mug and appeared to Ms. Rush to block

Respondent's face when she raised it to drink out of it while

driving.

12 . Ms. Rush reported what she saw on the video to William

Ralys, an area manager, who asked her to continue to review bus

videos of Respondent and to archive what she saw.

13 . Ms. Rush reviewed the bus video of Respondent's routes

on May 4, 2010, and observed Respondent pull over for a long

period of time and use her cellular telephone. She also viewed

the bus video of Respondent's routes on May 6, 2010, and

observed Respondent using her cellular telephone while operating

the bus with students on board.

14 . An internal investigation was conducted during which

bus videos of several days of Respondent's routes were viewed by

Mr. Akin, Assistant Director of Student Transportation Services

Chip Kent, and by Mr. R a l y s. Mr. Akin wrote a detailed

chronology of what he observed Respondent doing while operating

t he school bus on April 30, 2010; May 3, 2010; and May 4, 2010.

15 . Bus video of Respondent's routes shows Respondent

placin g a call and talking on her cellular telephone while

operating a school bus at approximately 4:00 p.m. on May 3,

2010. Respondent's cellular telephone records show she sent and

received numerous text messages during her routes on that date. 2/

16 . Bus vi deo of May 4, 2010 shows Respondent checking her

cellular telephone, placing a call , and talking on the phone

while operating the school bus. At approximately 3:32 p.m., the

video shows Respondent talking on the phone regarding a personal

matter . S he tol d the person to whom she was speaking to "hold

on, let me turn, hold on." Respondent then lowered her cellular

telephone to her lap and waved out the window. Respondent then

resumed her telephone conversation after turning .

17 . Also on May 4, 2010, the bus video of Respondent

shows, and Respondent acknowledged, that she spent approximately

42 minutes stopped at a location , the library, which is not part

of her route assignment. During this time, she again used her

cell phone for talking and messagin g for personal reasons .

S tudents were not on the bus at this time , but Respondent was

still "on the clock."

1 8 . Respondent's cellular telephon e records for May 4,

2010, show that she sent and received numerous text messages

while on her routes. Bus video for May 6, 2010 , and her

cellular telephone records, show Respondent using her cellular

telephone to read and type text messages while operating the

sc hool bus with students on board , as well as to make phone

calls.

1 9 . Bus video shows Respond ent drinking from a large pink

mug or container on multiple days while operating the school

bus. Respondent has used this large mug for seven years and had

not previously been disciplined for using it , nor had anyone

told her to stop using it while drivin g her routes.

20. Students on Respondent's bus were aware of her text

messaging and complained to her about it. The bus video of

May 6, 2010, shows Respondent holding her cellular phone in one

hand while driving students. She appears to be reading incoming

texts and texting while driving . S he t hen pull s over to text

message , at which time the students complain. One student said

"We gotta pull over so you can text." He also said, "Oh, this

is great, and "Drop me off . . . I can walk faster ." Another

student said to Respondent , "You can text and drive at the same

time, I don't mind." The first student then offered to text

message for Respondent , but she retorted, "You can't spell."

21. Respondent presented evidence of another School B oard

employee, Sandra McDavid, a bus attendant, who was disciplined

for not properly securing seat belts to wheel chair students and

for talking on a cellular phone while operating the wheel chair

lift while loading a wheel chair student. Ms. McDavid was

suspended without pay for 20 days. Respondent argues that

Ms. McDavid's case is similar to Respondent's, yet Respondent is

receiving much harsher disciplinary action. 3/

2 2 . I n a letter dated May 7, 20 10 , the Assistant Director

of Student Transportation Services notified Respondent that her

driving duties were temporarily suspended pending the outcome of

an investigation.

23 . On June 17, 2010, Mr. Akin sent a letter to Respondent

notifying her that she would be recommended for termination from

employment. The letter was accompanied with the Statement of

Charges signed by Superintendent Smith.

24 . At hearing, Mr. Akin noted that Respondent's case "is

the first time [he] ever [saw] a case that involves this many

issues on repeated days."

25 . On June 20, 2010, Respondent requested a hearing on

her termination which gave rise to this proceeding.

CONCLUSIONS OF LAW

26 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

case pursuant to Sections 120.569 , 120.57(1), 120.65(7) Florida

Statutes (20 10 ).

27 . The superintendent of each School District has the

authority to ma ke recommendations for dismissal regarding school

employees pursuant to Subsection 1012.27(5), Florida Statutes

(20 10 ) .

28 . The School Board has the authority to dismiss school

board employees pursuant to Subsections 1001 . 42(5) and

1012.22(1)(f), Florida Statutes (20 10 ) .

29 . The School Board has the burden of pro ving that it has

just cause to discipline Respondent and that Respondent's

employment should be terminated . The standard of proof is a

preponderance of the evidence. See , e.g. , McNeill v. Pine l las

County School Board , 678 So. 2d 476, 477 (Fla. 2nd DCA 1996);

Sublett v. Sumter County School Board , 644 So. 2d 1178, 1179

(Fla. 5th DCA 1995) ; Dileo v. School Board of Dade County , 569

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

30 . Article 6 of the collective bargaining agreement

between the School Board and the employee's union is entitled

"Discipline and Discharge" and provides that an employee may be

disciplined only for just cause. It further provides that under

normal circumstances, the School Board will follow the ten e ts of

progressive discipline in the administration of its disciplinary

standards.

31 . Section 1020.23(1), Florida Statutes, is entitled

"School District Personnel Policies, " and authorizes d istrict

school boards to adopt rules g overning personnel matters.

Florida Administrative Code Rule 6A - 3.0171 requires school

districts to adopt a school board policy prohibiting the use of

a cellular telephone by any school bus operator while actively

driving the bus.

32 . In the Statement o f Charges, Superintendent Smith

charges Respondent with the following :

A. The Respondent has failed to

maintain a safe atmosphere for students by:

1 . Using a cell phone to create and send

text messages while operating a school bus

transporting students,

2. Talking on a cell phone while operating

a school bus,

3. Engaging in activity which caused her

view of the road to be obscured while

operating a school bus with students on

board,

4. P arking school bus at an unauthorized

location, while on duty and in paid status,

for an extended period of time while talking

on a cell phone.

These acts violated School Board Policy 418,

Standards of Conduct, and Student

Transportation Services Responsibility

Procedure No. 2.6, Cellular

Telephone/Instant M essaging/PTT (Push - To -

Talk) Direct Connect Devices and Student

Transportation Services Operations Procedure

No. 3.24, Conformance to Route Schedules.

33 . Student Transportation Services Responsibility

Procedure No. 2.6 reads in pertinent part as follo ws:

CELLULAR/MOBILE COMMUNICATION PROCEDURES:

1. Bus operators and bus attendants are not

permitted to use cellular telephones,

including hands - free devices, "Bluetooth"

enabled headsets, instant messaging, PTT

Direct Connect mobile communication device s,

headphones, tape recorders, and/or other

devices while on duty on a Volusia County

school bus.

34 . The preponderance of the evidence establishes that

Respondent violated Student Transportation Services

Responsibility Procedure No. 2.6 in that she rep eatedly used a

cellular device on t he school bus she was operating when

students were present and while driving when students were not

present. Thus, Petitioner has proven that Respondent failed to

maintain a safe atmosphere for students by using a cell p hone to

create and send text messages while operating a school bus while

transporting students as charged .

35 . Student Transportation Services Operations Procedure

No. 3.24, is entitled "Conformance to Route Schedules" and

requires school bus drivers to "drive the routes as printed on

the official schedule."

36 . The preponderance of the evidence establishes that

Respondent made a lengthy stop at a location which was not part

of her route and while on duty. Thus, Petitioner has proven the

charge that Respondent parked a school bus at an unauthorized

location while on duty and in full paid status, for an extended

period of time while talking on a cell phone, in violation of

Procedure No. 3.24.

3 7. The Statement of Charges alleges that Respondent

engaged in activity which caused her view of the road to be

obscured while operating a school bus with students on board.

This charge references Respondent's frequent use of a large pink

mug while driving which, when lifted to drink, appears to

obstruct h er view. At hearing, Petitioner's witnesses

referenced Student Transportation Services Operations Procedure

No. 3.22(7) concerning the prohibition of eating or drinking on

the school bus.

38. Respondent has engaged in this behavior for seven

years, wit h no admonitions from her supervisors. Moreover, this

Procedure number was not specifically referenced in the

Statement of Charges. It is concluded that Petitioner did not

establish by a preponderance of the evidence that Respondent

engaged in activity w hich caused her view to be obscured while

operating a school bus with students on board.

39. The Statement of Charges alleges that Respondent

violated School Board Policy 418, Standards of Conduct.

However, while the Procedure Manual for School Bus Operators and

Bus Attendants is in evidence, School Board Policy 418 is not in

evidence. Thus, it cannot be concluded that Respondent violated

this standard of conduct.

40. The only remaining issue is the severity of the

discipline. Progressive discipl ine was not used in this case.

Student Transportation Services Orientation Procedure No. 1.5

sets forth three "levels" of disciplinary cases. Level three is

the most severe and is defined as "cases of alleged misconduct

wherein major violations of law . . . School Board Policy/

Procedure are alleged to have occurred, and if substantiated,

the level of discipline would rise to the level of unpaid

suspension or termination of the employee." Examples include

committing fraud or stealing School Board propert y ( such as

claiming time worked for time spent at an unauthorized location

while using a cellular telephone for personal reasons), and

major violations of School Board Policy or Procedures.

41. Respondent's conduct con s titutes a major violation of

School Board Policy in that it endangered students on the bus

and people in other vehicles on the road.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Volusia County School Board enter a final order

terminating Respondent's employment.

DONE AND ENT ERED this 3rd day of December , 20 10 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December , 20 10 .

END NOTE S

1/ Petitioner's witnesses described this as a change in federal

law. However, Petitioner's Exhibit 27 is a communication

from the U.S. Department of Transportation regarding the

interpretation of Federal Regulation 49 C.F.R. 390.17.

This regulatory interpretation answers the question, "Do the

Federal Motor Carrier Safety Regulations prohibit "texting"

while driving a commercial motor vehicle in interstate

commerce?" The regulatory guidance letter answers this question

as follows:

Yes. Although the current safety

regulations do not include an explicit

prohibition against texting while driving by

truck and bus drivers, the general

restriction against the use of additional

equipment and accessories that decrease the

safety of operation of commercia l motor

vehicles applies to the use of electronic

devices for texting.

2/ The complete cellular telephone records are not in evidence .

Notably, there are references to pages o f calls from the

cellul ar telephone records in Petitioner's Proposed Recommended

Order, which are not in evidence.

3/ Respondent presented evidence regarding other employees who,

she argues, committed similar violations but who received less

harsh discipline. However, the evidence regarding thes e other

employees was not competent evidence and, further, is not

sufficient in and of itself to support findings of fact

concerning these other employees. See § 120.57(1)(c), Fla .

Stat .

COPIES FURNISHED :

Erin G. Jackson , Esquire

Thompson, Sizemore, G onzalez

& Hearing , P.A.

Post Office Box 639

Tampa , Florida 32602

Marc Aaron Sugerman , Esquire

AFSCME Council 79

2738 North Forsyth Road

Winter Park , Florida 3 2792

Dr. Margaret A. Smith

Superintendent Volusia County Schools

P ost O ffice Box 2118

Deland , Florida 327 21 - 2118

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 Educatio n

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.