10-008915TTS Lee County School Board vs. Luis Lomonte Status: Closed Recommended Order on Thursday, February 10, 2011.

Summary: School Board showed by preponderance of evidence that bus driver should be terminated for telling female students they were beautiful or pretty and offering to take their pictures.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8915

)

LUIS LOMONTE , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on December 1 and 2, 2010, in Fort Myers, Florida , before

Thomas P. Crapps, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

W hether Petitioner has established just cause to terminate

Respondent as an educational support employee.

PRELIMINARY STATEMENT

On August 3, 2010, James W. Browder, Ed.D., superintendent

for the School District of Lee County (School District), issued

a Pet ition for Termination (Petition) against Respondent, Luis

Lomonte (Mr. Lomonte). The Petition recommended that

Mr. Lomonte's employment as a bus driver be terminated for

alleged violations of section 1012.33(1)(a), Florida Statutes

(2009) 1/ ; Florida Admin istrative Code Rule 6B - 4.009(3); and Lee

County School Board Policies 5.02, 5.03 , and 5.29.

On August 6, 2010, Mr. Lomonte requested an administrative

hearing on the Petition pursuant to Article 7, Section 7.103 of

the Collective Bargaining Agreement between the School District

and the Support Personnel Association of Lee County (SPALC) .

On Augus t 31, 2010, Petitioner, Lee County School Board

( School Board ), voted to suspend Mr. Lomonte without pay pending

the receipt of the Recommended Order fro m the Administrative Law

Judge.

On September 7, 2010, Mr. Lomonte's request for a hearing

was filed wit h the Division of Administrative Hearings, and an

Initial Order was issued. The case was originally assigned to

Administrative Law Judge Susan B. Harrell, and a final hearing

was set for November 2 and 3, 2010. The School Board filed for

a continuance of the hearing, and it was rescheduled for

December 1 and 2, 2010. The case was transferred to

Administrative Law Thomas P. Crapps to conduct the final

hearing.

The parties entered into a Joint Pre - hearing Stipulation,

stipulating to certain facts containe d in Section E of the Joint

Pre - hearing Stipulation filed in this case. Those facts have

been incorporated into this Recommended Order to the extent

relevant.

At the final hearing, the School Board called Christine

Christensen ; D.T., a minor student ; and Charles B. Dailey as its

witnesses and presented the deposition testimony of H.J., J.S.,

A.S. , D.P., and T.J.B. 2/ Petitioner's Exhibits 1 through 4, 6

through 12, and 14 through 22 were admitted into evidence.

Mr. Lomonte presented the testimony of hims elf, S.A., S.G.F.,

E.M.R., and A.F. Respondent's Exhibits 1 through 1 0 were

admitted into evidence.

The two - volume T ranscript was filed on December 27, 2010.

At the final hearing, the parties requested that proposed

recommended orders be filed with the D ivision of Administrative

Hearings on January 14, 2011. The undersigned granted the

parties' request for the January 14, 2011 , filing date of the

proposed recommended orders. On January 10, 2011, Mr. Lomonte

filed an unopposed motion , seeking an extensio n of time to file

his proposed recommended order. The undersigned granted the

motion and granted the parties until January 21, 2011 , to file

their proposed recommended orders. The parties timely filed

their P roposed R ecommended O rders, which were conside red in the

preparat ion of this Recommended Order.

FINDINGS OF FACT

Based on the evidence, the following facts were found:

1. The s uperintendent for the School District has the

authority pursuant to section 1012.27 to recommend the

termination of any S chool District employee to the School Board .

Further, the School Board has the authority to terminate and/or

suspend support personnel without pay and benefits pursuant to

sections 1012.22(1 ) (f) and 1012.40(2)(c).

2. Mr. Lomonte has been employed with th e School District

since January 3, 2006, and was a bus driver for the School

District's Transportation Department.

3. As a bus driver, Mr. Lomonte is an "educational support

employee," as defined by section 1012.40(1)(a), and is governed

by the Collective Bargaining Agreement ( SPALC Contract ) between

the School District and SPALC. The SPALC Contract requires

"just cause" for the discipline of support personnel.

Art. 7.10, SPALC Contract .

4. On June 7, 2010, Charles Dailey (Mr. Dailey) , the

d irector of Tr ansportation , West Zone of the School District,

received a letter from a parent concerning Mr. Lomonte. 3/ The

letter complained that the bus driver had engaged in

inappropriate behaviors. Specifically, the parent complained

that Mr. Lomonte was asking th e middle school female student what

she wore to bed, grabbing her book bag, and telling her that she

was pretty.

5. The School District began an investigation into the

complaint and took statements from some of the students who rode

the bus driven by Mr. Lomonte. Based on its investigation, the

School Board found just cause to terminate Mr. Lomonte's

employ ment.

6. The School Board presented the testimony of D.T., a 14 -

year - old girl, who rode the bus driven by Mr. Lomonte for the

time period of April 2010 until June 2010. D.T. credibly

testified that:

( a) Mr. Lomonte, on two occasions, had

kissed her hand on leaving the bus;

( b) Mr. Lomonte often called her

"beautiful," "pretty , " and "queen of the

bus";

( c) Mr. Lomonte had invited her to his home ,

where he had a professional photography

studio, to have her picture taken for

Quincera, and told her that he had beautiful

dresses that she could wear; [4]

( d) Mr. Lomonte had placed his hand on her

thigh once when she had been wearing Capri

pants;

( e) Mr. Lomonte had commented on her

clothing, and the fact that she wore long

pants, and asked her to turn - a - round so that

he could see her;

( f) Mr. Lomonte would tell her that she

"smelled really good"; and

(g ) Mr. Lomonte would often stare at her.

7. D.T. credibly testified that Mr. Lomonte's actions and

words made her fee l "uncomfortable" and "weird."

8. The record shows the School District learned about

D.T.'s allegations against Mr. Lomonte after he had been

initially suspended as the bus driver. Mr. Lomonte's initial

suspension occurred during its investigation based on the

parent's June 7, 2010 , comp laint. The record shows that after

Mr. Lomonte had been suspended off the bus in early June 2010,

D.T. asked the substitute bus driver, Todd Thompson

(Mr. Thompson) , if he was going to be the new bus driver. D.T.

explained to Mr. Thompson that Mr. Lomont e had made her feel

uncomfortable based on his calling her "princess" and making

suggestions that "she could come over to his house and h e could

take pictures of her."

9. Mr. Lomonte's testimony that D.T. exaggerated or was

untruthful because he had disciplined her on the bus was not

credible. Mr. Lomonte testified that he had given D.T. a

referral for "horse play" with a younger student. Yet, there was

no evidence of th is referral at the time it occurred, or that

D.T. had ever been sanctioned based on Mr. Lomonte's referral.

The only evidence that he had informed the School District that

D.T. had been given a referral was before the School District's

pre - determination h earing held on June 24, 2010.

10. The School Board also brought forward the deposition

testimony of five student witnesses, H.J., J.S., A.S., D.P., and

T.J.B. All of these students were middle school - age d girls that

rode Mr. Lomonte's bus during the 2009 - 2010 school year. 5/

11. The testimony supports the allegation in the Petition

that Mr. Lomonte asked H.J. and D.P. what they wore to bed. The

record, however, is unclear and contradictory about the

circumstances of the comments and when the comment or c omments

took place. Mr. Lomonte brought forward evidence showing that

the middle school had a pajama day as part of its spirit week and

that the comments may have occurred on pajama day. Similarly,

some of the witnesses remembered Mr. Lomonte asking H.J. and D.P.

together, others remembered him asking H.J. or D.P. on separate

occasions. Although there was discrepancy in the circumstances,

all of the witnesses remembered Mr. Lomonte asking H.J. and/or

D.P. what they wore to bed. Even if Mr. Lomonte asked the

question in the context of pajama day and in innocence, the

question is inappropriate.

12. The deposition testimony also supported the factual

allegation that Mr. Lomonte called female students on the bus

"pretty" or "beautiful." This finding was al so supported by one

of Mr. Lomonte's witnesses, E.F., that Mr. Lomonte would tell

female students on the bus "you'r e pretty or you're beautiful."

13. The deposition testimony with regards to the allegation

that Mr. Lomonte showed a student an inappropriat e picture on his

cell phone and sent a picture to the student on her cell phone

was not supported. D.P. testified that Mr. Lomonte showed her a

cartoon figure showing its middle finger. Mr. Lomonte denied

that he showed her a picture on his cell phone. The record was

inconclusive, and no other evidence was offered to support the

allegation of Mr. Lomonte showing an inappropriate picture on his

cell phone to D.P. No evidence was presented that Mr. Lomonte

sent any picture to a student. Thus, thes e alleg ations were not

proven.

14. The record did not support the factual allegation that

Mr. Lomonte inappropriately touched the arms of the students who

provided deposition testimony. The record did show that

Mr. Lomonte pulled on H.J.'s sweat shirt to get he r attention,

but that he s topped once she asked him to.

15. Finally, the record was not clear that that Mr. Lomonte

stared at the female students through the rearview mirror. Many

of the female students testified that they felt that Mr. Lomonte

stared at them through the rearview mirror. Mr. Lomonte

testified that he did not stare at the students and that he often

wore sunglasses because his eyes were sensitive to light.

Mr. Lomonte reasoned that because he wore dark sunglasses, the

students could not te stify that he was staring at them. The

testimony from the students was that he sometimes wore

sunglasses. Although the students "felt" he was staring at them,

it is difficult to determine the witnesses' credibility from

reading a deposition . One student , J.S., however, did offer

unrebutted testimony that Mr. Lomonte had stared down her shirt

on one occasion when she had worn a tank top. Notably, Mr.

Lomonte , in his testimony , did not address the allegation by J.S.

Based on Mr. Lomonte's conduct of calling young female students

"beautiful or pretty" on the bus, it is understandable that the

students would feel that he was staring at them. The allegation

of staring at students , with the exception of staring down one

student's shirt , is not established.

16. Mr. Dailey credibly testified that in 2008 he had given

Mr. Lomonte a verbal warning about telling a female student that

she was pretty and offering to take the student's pi cture.

Mr. Dailey testified that he made it clear to Mr. Lomonte that

those comments were totally inappropriate. Further, Mr. Dailey

credibly testified that Mr. Lomonte understood the warning. At

hearing , Mr. Lomonte admitted that he realized that he mad e a

mistake about talking to D.T. about his photography business.

Mr. Lomonte, however, attempted to explain that he understood

that Mr. Dailey only prohibited him from talking about the

photography business, but did prohibit him from answering D.T.'s

que stions about Lomonte's photography business. Mr. Lomonte's

attempt to parse his understanding about Mr. Da iley's warning is

not credible.

17. Mr. Lomonte presented the testimony of S.A., S.G.F.,

E.M.F., and A.F. concerning the bus. The testimony showed

generally that Mr. Lomonte dressed professional ly . The students

testified that they did not see Mr. Lomonte do anything improper.

However, the facts showed that the students were often not in a

position to hear whether or not Mr. Lomonte made inappropria te

comments or see any inappropriate actions. For example, S.A.

admitted that she was not on the bus all of the time that H.J.,

D.P . , A.S., and J.S. were on the bus. Similarly, A.F. testified

that she did not hear Mr. Lomonte call any student pretty or

b eautiful, but admitted that she could not hear what Mr. Lomonte

was t elling D.T. from her bus seat.

18. The record showed that despite his verbal warning in

2008, Mr. Lomonte received good evaluations as a bus driver and

was effective in his job.

19. Mr. Lomonte testified under oath that he understood

English and that he understood the proceedings against him and

understood the testimony being offered.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

contractual jurisdiction over the parties and subject matter of

the P etition pursuant to sections 120.65(7), 1012.40(2)(c),

120.569, and 120.57 , Florida Statutes (2010) , and pursuant to

School Board Policy 1.16(6)(c).

21. The S chool Board has the burden of proving by a

preponderance of the evidence the allegations underlying the

proposed disciplinary action. McNeill v. Pinellas Cnty . Sch .

Bd . , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch . B d. of

Dade Cnty . , 569 So. 2d 883 (F la. 3d DCA 1990).

22. As a bus operator, Mr. Lomonte is an "educational

support employee," as defined by s ection 1012.40(1(a).

Mr. Lomonte's employment is governed by the SPALC Contract

between the School District and the SPALC.

23. An "educational support employee," like Mr. Lomonte,

can only be terminated for reasons set forth in the SPALC

Contract . § 1012.40(2)(b), Fla. Stat. The SPLAC Contract

provides that educational support employees can be terminated for

"just cause." The term "just cause" is not defined in the SPALC

Contract nor does the contract provide for a progressive

discipline plan. The SPALC Contract provision 7.11 requires

"that in all instances th e degree of discipline shall be

reasonably related to the seriousness of the offense and the

employee's record."

24. The School District has construed "just cause" for

purposes of discipline pursuant to the SPALC Contract in the same

manner as the term is used in section 1012.33, relating to

instructional staff. See Lee Cnty . Sch . Bd . v. Simmons , Case

No. 03 - 1498 (DOAH July 15, 2003)(adopted in toto by Final Order

dated August 12, 2003). See also Lee Cnty . Sch . Bd . v. Kehn ,

Case No. 04 - 1912 (DOAH Feb. 12, 2005)(adopted in toto by Fina l

Order dated March 10, 2005).

25. Section 10 12.33(1)(a) provides in pertinent part:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, in competency, gross

subordination . . . .

26. The School District charged Mr. Lomonte with misconduct

in office. Rule 6B - 4.009 provides as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Pro fessional Conduct for the Education

Profession in Florida as adopted from Rule

6B - 1.006, F.A.C., which is so serious as to

impair the individual's effec tiveness in the

school system.

27. The School District also charged Mr. Lomonte with

violating School Board Policies 5.02, 5.03 , and 5.29. School

Board Policies 5.02 and 5.03, Professional Standards, requires

School District employees to dedicate themselves to the highest

ethical standards and to be of good moral character. School

Board Policy 5.29 requi res all employees to exemplify conduct

that is lawful and professional.

28. Applying the law to the facts here, the School Board

has proven by a preponderance of the evidence "just cause" for

Mr. Lomonte's termination. Mr. Lomonte's conduct in kissing a

female middle school student's hand, placing his hand on the

student's thigh, having the female student turn around so that

he can see what she was wearing, calling the young students

"pretty" and "beautiful" on the bus, asking students what they

wore to b ed, staring down the shirt of a middle school - age d

student, and soliciting to take photographs for his private

business, after previously having been warned not to, is so

serious as to impact his effectiveness as a bus driver and falls

short of the high et hical standards set by the School District.

29. Although Mr. Lomonte has received positive job

evaluations as a bus driver, one must consider his conduct here

in light of his past discipline. Mr. Dailey credibly testified

that Mr. Lomonte had been warned about telling young girls on

the bus that they were "pretty" or "beautiful" and that he was

not to solicit his photography business during school hours.

The facts here show that Mr. Lomonte violated both of these

prohibitions. The prior discipline and t he inappropriate

touching weigh heavily against Mr. Lomonte's positive job

evaluations. Even if one did not consider the past verbal

discipline and considered that Mr. Lomonte was an effective bus

driver, Mr. Lomonte's actions here concerning the young fe male

students would still require termination. It would be difficult

to see how he could be an effective employee when he is

inappropriately touching and speaking to young female students.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a f inal o rder

finding that just cause exists for terminatio n of Mr. Lomonte's

employment.

DONE AND ENTERED this 10th day of February, 2011 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 10th day of February, 2011 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 200 9 version.

2/ The student's names are kept confidential, and any reference

to a student providing testimony or a sworn statement will be by

the student's initials.

3/ The letter referenced a complaint concerning the bus driver

"Mr. Lewis." Mr. Lomonte's first name is "Luis." It is

undispu ted that the June 7, 2010 , letter from the parent

contained allegations against Mr. Lomonte and that the reference

to "Mr. Lewis" applied to him.

4/ The evidence showed that "Quincera" is a coming of age party

for 15 - year - old Hispanic girls.

5/ Mr. Lom onte had two separate bus routes involving two

separate schools. D.T. rode a bus route and attended Ft. Myers

Academy of the Arts, and H.J., J.S., A.S., D.P., and T.J.B

a ttended Caloosa Middle School.

COPIES FURNISHED :

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

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

Dr. Lawrence D. Tihen, Interim Supe rintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

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.