11-005436TTS
Pinellas County School Board vs.
Eric F. Thomas, Jr.
Status: Closed
Recommended Order on Friday, May 4, 2012.
Recommended Order on Friday, May 4, 2012.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PINELLAS COUNTY SCHOOL BOARD , )
13)
14Petitioner , )
16)
17vs. ) Case No. 11 - 5436TTS
24)
25ERIC F. THOMAS, JR. , )
30)
31Respondent . )
34)
35RECOMMENDED ORDER
37Pursuant to n otice, a final hearing in this cause was held
49on January 19 and April 3, 2012, in Largo, Florida, Tallahassee,
60Florida, before the Division of Administrative Hearings by its
69designated Administrative Law Judge Linzie F. Bogan.
76APPEARANCES
77For Petitioner: Laurie A. Dart, Esquire
83Pinellas County Schools
86301 4th Street, Southwest
90Post Office Box 2942
94Largo, Florida 33779 - 2942
99For Respondent: Eric F. Thomas, Jr., pro se
10714099 Belcher Road South, Lot 1001
113Largo, Florida 33771
116STATEMENT OF THE ISSUE
120Whether just cause exists to terminate Respondent from his
129employment with the Pinellas County School Board.
136PRELIMINARY STATEMENT
138By correspondence dated April 5, 2011, Respondent, Eric F.
147Thomas , Jr. (Respondent), was informed by Julie M. Janssen,
156s uperintendent of Pinellas County Schools (Superintendent), that
164a recommendation seeking the termination of Respondent's
171employment would be submitted to Petitioner, Pinellas County
179School Board (Petitioner/School Board) , for appropriate action.
186In response to the correspondence of April 5, 2011, Respondent,
196on April 26, 2011, timely filed a Request for Administrative
206Hearing. By correspondence dated October 19, 2011, the matter
215was forwarded to the Division of Administrative Hearings f or a
226disputed fact hearing.
229This final hearing in this matter was scheduled to commence
239on January 10, 2012. Petitioner moved for a continuance , and the
250final hearing was re - scheduled for January 19, 2012. During the
262final hearing on January 19, 2012, i t was determined that a
274second day would be needed for the presentation of evidence. By
285agreement of the parties, April 3, 2012, was designated as the
296day for submitting additional evidence.
301Petitioner called Respondent to testify during its case - in -
312chie f. Petitioner also offered the testimony of Amy Danson , A.M.
323(student witness) , Rosa Gibbs , Michael Griffiths , William
330Moan, Jr. , T. Mark Hagewood , and Valencia Walker. Respondent
339testified on his own behalf and offered the testimony of Rose
350Irizarry, Fe licia Salters, Sonya Roundtree, and James Lott.
359Petitioner's Exhibits 1, 2A through 2G, 3 through 8, and 9A were
371admitted into evidence. Respondent's Exhibits 1 through 3,
3795 through 10, and 13 through 20 were admitted into evidence.
390Respondent's Exhibit s 11 and 12 were officially recognized .
400A three - volume Transcript of the proceeding was filed with
411the Division of Administrative Hearings on April 16, 2012. The
421parties timely filed proposed recommended orders , which have been
430considered in the preparat ion of this Recommended Order.
439FINDING S OF FACT
4431. On January 23, 2006, Respondent was hired by Petitioner
453to work as a school bus driver. The position of bus driver is
466covered by the 2008 - 2011 Collective Bargaining Agreement between
476The School Board of Pinellas County, Florida, and SEIU/Florida
485Public Services Union, CTW - CLC (Collective Bargaining Agreement).
4942. Respondent's employment disciplinary history with
500Petitioner is as follows:
50412/07/06 Respondent received a "Conference Summary"
510for uncorrect ed job deficiencies and for
517making inappropriate remarks to students;
52205/06/08 Respondent received a "Caution" for making
529inappropriate remarks to students;
53305/22/08 Respondent received a "Reprimand" for failing
540to comply with board policy, State law, or
548the appropriate contractual agreement;
55201/25/10 Respondent received a "Caution" for excessive
559absenteeism;
56003/26/10 Respondent received a "Caution" associated
566with an accident/crash that he had while
573operating his assigned school bus;
57810/04/10 Responden t received a "Conference Summary"
585for insubordination;
58712/02/10 Respondent received a "Caution" for making
594inappropriate and disparaging remarks to a
600student; and
60212/14/10 Respondent received a "Caution" associated
608with an accident/crash that he had whil e
616operating his assigned school bus.
6213. During Respondent's term of employment with Petitioner,
629his performance appraisals have been satisfactory with the
637exception that on January 20, 2009, Respondent was advised that
647he needed to improve his punctuali ty ; and on January 25, 2010, he
660was told that his work attendance was unsatisfactory.
6684. The passenger compartment of the school bus operated by
678Respondent during all times relevant hereto is typical of most
688school buses. There are two columns of seats separated by an
699aisle for ingress and egress that runs the length of the bus.
711Each column of seats is composed of approximately nine bench
721seats.
7225. The bus operated by Respondent was equipped with an
732operable audio/video camera. The audio/video ca mera was mounted
741at the front of the bus' passenger compartment and was positioned
752such that it simultaneously recorded audio and images of the
762passengers and of Respondent while he operated the bus.
7716. The bus also has a mirror mounted forward of the driver
783and above his head. When viewed from the seat of the driver of
796the bus , the overhead mirror allows the driver to monitor some of
808the activities of the passengers.
8137. During all times relevant hereto, Respondent was
821operating his assigned bus on the roads of Pinellas County,
831Florida.
8328. On February 8, 2011, student A.D. was a passenger on the
844bus operated by Respondent. School had been released for the
854day , and Respondent was transporting the students to their
863appointed stops. A.D. was enroll ed as a middle school student
874and the other 30 or so students that were on the bus on
887February 8 and 9, 2011, appear from the audio/video recording to
898be of an age similar to that of A.D.
9079. On February 8, 2011, A.D. was seated in the third row
919nearest Respondent and was, for the most part, positioned such
929that his upper torso was angled towards the rear of the bus. At
942approximately 4:22 p.m., A.D. is seen on the video making a
953throwing motion with his right arm.
95910. Within a second of A.D. completi ng the throwing motion,
970Respondent remove d the sunglasses from his face and in an
981agitated voice sa id , "(student's name) what did I say?"
991Simultaneous to making the statement, Respondent also spread his
1000arms as an added gesture of frustration. Respondent 's facial
1010expression further reflect ed his feelings of frustration and
1019exasperation.
102011. Approximately 14 seconds after calling out to A.D.,
1029Respondent picked up the microphone to the bus' public address
1039system and announced the following:
1044Respondent: He y! (1 second pause)
1050Respondent: If anybody sees (A.D.) throwing
1056paper, you have my permission to knock him
1064out!
106512. According to Mr. Thomas Hagewood, who works for
1074Petitioner as manager of the transportation department, a
1082student's assigned school dete rmines appropriate disciplinary
1089action when a student commits an infraction while riding on a bus
1101operated by Petitioner. Employees, like Respondent, that are
1109assigned to Petitioner's transportation department are not
1116responsible for disciplining students .
112113. Respondent testified as follows regarding his rationale
1129for authorizing the students on the bus to strike A.D.:
1139Respondent: Well, I felt like I had to just
1148bring A.D. down a peg because, like I said
1157before, in the beginning of the year -- this
1166has been an ongoing problem. I've written
1173him up, I've gone to the school, you know,
1182I've gone to my FOS (Field Operations
1189Supervisor) and I couldn't get anybody to
1196help me get this child under control. It
1204came to a point where we had a sixth grader
1214bullying 50 kids on the bus by throwing
1222pencils, crayons, paper, you name it, snot
1229rags.
1230It was just that particular day where even
1238after I told him before the bus pulled out of
1248the bus circle -- I asked him not to throw
1258anything, you know, and he did not listen to
1267me. He got on the bus. He continued to
1276throw stuff. I could hear the girls in the
1285back asking A.D. to stop, you know.
1292I just thought that if I embarrassed him a
1301little bit that it would work, you know, that
1310he would just stop for that moment, you know ,
1319just to leave everybody alone.
1324Counsel: So you intended to embarrass him?
1331Respondent: I intended to get his attention.
1338Counsel: Okay. You just said "I thought if
1346I embarrassed him."
1349Respondent: Well, okay. Yeah. I just
1355thought if I brought the attention on him
1363that, you know, he would stop doing what he
1372was doing.
1374Although Respondent testified that he had previously "written
1382A.D. up" for misconduct and complained repeatedly to school
1391officials about A . D . 's behavior, Respondent did not produce any
1404evidence to corroborate this testimony. Additionally, Petitioner
1411reviewed its files and did not locate any documentation to
1421substantiate Respondent's claim that he complained about A.D.'s
1429behavior prior to February 8, 2011. Respondent's testimony
1437reg arding his complaints about A.D. is not credible.
144614. Immediately after Respondent finished announcing to the
1454students that it was permissible to "knock out" A.D., several
1464girls can be heard screaming in response to Respondent's
1473statement, and a male stud ent in a grey jacket is seen rising
1486from his seat and moving towards A.D. in a provocative manner
1497while stating something to A.D. that is inaudible. The student
1507in the grey jacket returned to his seat without incident.
151715. A few moments later, a male stu dent in a white hat , who
1531was initially positioned a few seats behind A.D., is seen on the
1543video making his way towards A.D. The student in the white hat
1555eventually positions himself in the seat diagonal from A.D. At
1565approximately 4:24 p.m. , the student i n the white hat is seen on
1578the video standing over A.D. and throwing a punch at A.D. that
1590appears not to have been intended to strike A.D. After throwing
1601the counterfeit punch, the student in the white hat returned to
1612his seat and pointed his right index finger at A.D. It is not
1625decipherable from the audio what, if anything, the student in the
1636white hat said to A.D. while gesturing with his finger.
164616. Over the next 30 seconds or so, the student in the
1658white hat is seen on the video poking A.D. Both stu dents are
1671seated while this is occurring. At approximately 4:25 p.m. , the
1681student in the white hat rises from his seat, positions himself
1692in a fighting stance while standing over A.D., and throws a right
1704hand punch that strikes A.D. 's head. Immediately a fter being
1715punched, A.D. sinks into his seat and disappears from the view of
1727the camera.
172917. Approximately 15 seconds after A.D. was punched, a
1738female student in a grey jacket makes her way from the back of
1751the bus and leans over A.D. After leaning ove r A.D. for
1763approximately three seconds, the female student walks back to her
1773seat. It is not known what, if anything, the female student said
1785to A.D.
178718. Approximately ten seconds later, a female student in a
1797cream - colored jacket rises from her seat near the rear of the
1810bus, walks down the aisle, and positions herself in the seat
1821across from A.D. The student leans over A.D. and can be seen
1833patting A.D. in such a way as to suggest that she was providing
1846A.D. with comfort and support. After several second s, the female
1857student in the cream - colored jacket rises and returns to her seat
1870at the back of the bus.
187619. Throughout the remaining portion of the video from
1885February 8, 2011, A.D. remains crouched down in his seat and
1896hidden from the video , except for a m omentary instance when he
1908rises from his seat and throws a punch at the student seated
1920behind him. Respondent did not re act to A.D. having thrown a
1932punch at another student because Respondent, at the time the
1942punch was thrown, was driving the bus whil e using his cell phone.
1955Additionally, at other times on February 8, 2011, students on the
1966bus were leaving their seats, walking up and down the aisle, and
1978throwing objects about the bus. These activities went unnoticed
1987by Respondent because he was distra cted by talking on his
1998cellular phone while operating the bus.
200420. The following morning, Respondent, while transporting
2011the students to school, made the following announcement over the
2021public announcement system:
2024Respondent: Hey, real quick. Who woul d
2031ya'll say the main person is that is always
2040throwing stuff on this bus?
2045Students: (Students yell out A.D.'s name)
2051Respondent: Okay. They are probably going
2057to question ya'll since he isn't on the bus.
2066He probably told his parents about something
2073tr ying to get me fired or something, you know
2083whatever.
2084Student: We got your back Mr. Thomas!
2091Respondent: Alright.
209321. A.D. sustained physical injuries and sought medical
2101treatment as a consequence of receiving the punch to his head.
2112A.D. reported the incident to his mom who was extremely upset by
2124the fact that Respondent, as a school board employee, would
2134encourage students to engage in acts of violence. At 5:05 p.m. ,
2145on February 8, 2011, A.D.'s mom called Respondent to report the
2156incident. After th e incident of February 8, 2011, A.D. was
2167afraid to ride the bus operated by Respondent. A.D.'s mother
2177moved her place of residency and transferred A.D. to another
2187school because she wanted to "get away from that area" where she
2199and A.D. lived at the time.
220522. The student that struck A.D. was arrested and charged
2215with battery. The offending student successfully completed the
2223juvenile diversion program. The mother of the student that
2232struck A.D. was also outraged by Respondent's conduct of
2241encouraging students on the bus to engage in acts of violence.
225223. Around February 8, 2011, Respondent was going through a
2262stressful domestic situation related to him gaining custody of
2271his son. As a consequence of his domestic instability,
2280Respondent was experien cing a great deal of subjective emotional
2290distress to the extent that he felt like a "bottle about to pop."
230324. As previously noted, Respondent, on December 2, 2010,
2312was issued a letter of caution for using inappropriate language
2322while on the bus with mi ddle school students. As a part of the
2336process for addressing the incident of December 2, 2010,
2345Respondent agreed to voluntarily attend a student management
2353class that is tailored towards bus drivers. A confluence of
2363factors contributed to Respondent not taking the student
2371management class. First, Respondent missed work for a period of
2381time due to a workers' compensation injury. Second, the school
2391district was closed several weeks for winter break. Third, due
2401to a rotation of managerial personnel by Pe titioner, the
2411individuals that were aware of Respondent's request to take the
2421student management class were given new assignments such that
2430they no longer supervised Respondent. Finally, and most
2438importantly, Respondent showed no initiative upon his retur n to
2448work in taking the steps necessary to inform his new superiors
2459about his desire to enroll in the student management training
2469course.
2470CONCLUSIONS OF LAW
247325. The Division of Administrative Hearings has
2480jurisdiction over the parties and subject matter of this
2489proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011). 1/
249826. Petitioner seeks to terminate Respondent's employment.
2505Petitioner bears the burden of proving by a preponderance of the
2516evidence that just cause exists for Respondent's terminatio n.
2525McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d
2538DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883
2551(Fla. 3d DCA 1990).
255527. As a member of the transportation department of the
2565School Board, Respondent is considered an education al support
2574employee. §§ 1012.01(6) and 1012.40(1)(a).
257928. Section 1012.40(2)(b) provides in part that "[u]pon
2587successful completion of the probationary period by the
2595[educational support] employee, the employee's status shall
2602continue from year to year unless the district school
2611superintendent terminates the employee for reasons stated in the
2620collective bargaining agreement. . . ." At the time of the
2631events that provide the basis for the instant action, Respondent
2641had successfully completed his term of probationary employment.
264929. Article 24, section 1, of the Collective Bargaining
2658Agreement provides , in part , that "[t]he provisions of Board
2667Policy 8.25 shall define just cause [and] [s]hould the
2676superintendent seek termination of an employee, the exclu sive
2685forum of appeal shall be through the Administrative Procedures
2694Act (Chapter 120, Florida Statutes)." Board Policy 8.25 has been
2704re - designated as School Board of Pinellas County Policy 4140
2715(Board Policy 4140). Board Policy 4140 applies to Respondent .
272530. Board Policy 4140 authorizes the s uperintendent to
2734recommend to the School Board that disciplinary action, including
2743termination, be taken against covered personnel that violate the
2752policy .
275431. Board Policy 4140 provides, in part, as follows:
2763S upport staff may be dismissed for cause.
2771* * *
2774The Superintendent retains the right and the
2781responsibility to manage the work force. The
2788School District generally follows a system of
2795progressive discipline in dealing with
2800deficiencies in employee wo rk performance or
2807conduct. Progressive discipline may include,
2812but is not limited to, written
2818counseling/conference summary, caution,
2821reprimand, suspension without pay, and
2826dismissal defined as follows:
2830A. Written Counseling/Conference Summary --
2835This is a written memorandum or letter
2842memorializing an area of concern involving
2848the performance or conduct of the
2854employee. It is the first step in
2861progressive discipline and is intended to
2867counsel and advise the employee of best
2874practices.
2875B. Letter of Caution -- A letter of caution is
2885given to an employee who has demonstrated
2892problematic behavior or performance. It
2897is the second step in progressive
2903discipline and is intended to alert the
2910employee that a problem has been
2916identified and needs to be corrected.
2922C. Reprimand -- A written reprimand is more
2930serious than a caution. It is a formal
2938censure or admonition given to an employee
2945who has engaged in unacceptable behavior
2951or demonstrated unacceptable performance.
2955D. Suspension Without Pay -- A suspension
2962without p ay is the temporary release from
2970duty of an employee for a stated number of
2979calendar days without pay and applies when
2986a violation or repetition of violations of
2993policies, contractual provisions, laws, or
2998District expectations are serious enough
3003to warrant suspension.
3006E. Dismissal -- This is the final step in
3015progressive discipline and applies in
3020cases where the employee misconduct is
3026severe or in cases where the misconduct or
3034unacceptable behavior or performance is
3039repetitive and the progressive discipline
3044procedures have not corrected the
3049problems.
3050The severity of the problem or employee
3057conduct will determine whether all steps will
3064be followed or a recommendation will be made
3072for suspension without pay or dismissal.
3078When there is a range of penalties,
3085ag gravating or mitigating circumstances will
3091be considered. The following offenses are
3097subject to the penalties described below:
3103PENALTY
3104VIOLATIONS OFFENSE RANGE
3107A.7. Use of corporal Conference
3112punishment, excessive Summary --
3116force or inappropriate Dismissal
3120method of discipline
3123A.9a. Failure to perform the Caution --
3130duties of the position Dismissal
3135A.13. Inappropriate or Conference
3139disparaging remarks to Summary --
3144or about students or Dismissal
3149exposing a student to
3153unnecessary
3154embarrassment of
3156disparagement
3157A.19 Failure to correct Conference
3162performance Summary --
3165Dismissal
3166A.21 Conduct unbecoming a Caution --
3172Board employee that Dismissal
3176brings the District into
3180disrepute or that
3183disrupts the orderly
3186processes of the
3189District
3190A.24 Failure to comply with Caution --
3197Board policy, State law, Dismissal
3202or appropriate
3204contractual agreement
3206* * *
3209C. The following aggravating and mitigating
3215factors or circumstances will be
3220considered when determining the
3224appropriate penalty within a penalty
3229range:
32301. the threat posed to the health, safety or
3239welfare of students, co - workers, or
3246members of the public;
32502. the severity of the offense;
32563. degree of student involvement;
32614. the disciplinary history of the employee,
3268including the number of offenses, the
3274len gth of time between offenses as well
3282as the similarity of offenses;
32875. the actual damage, physical or otherwise,
3294caused by the misconduct;
32986. any effort of rehabilitation by the
3305employee;
33067. attempts by the employee to correct or
3314stop the misconduct;
33178 . pecuniary benefit or self - gain to the
3327employee realized by the misconduct;
33329. impact of offense on students,
3338co - workers, or members of the public;
334610. length of employment;
335011. whether the misconduct was motivated by
3357unlawful discrimination;
335912. empl oyee's evaluations; [and]
336413. any other relevant mitigating or
3370aggravating factors[.]
3372A. Inappropriate Method of Discipline
337732. Respondent was charged with violating Board P olicy 4140
3387A.7. This section of the policy prohibits support staff, like
3397Respo ndent, from using corporal punishment, excessive force or
3406inappropriate methods of discipline on a student. According to
3415Petitioner, Respondent was charged with this violation because he
"3424did not use an appropriate method of discipline as a bus driver
3436on the school bus."
344033. As to this charge, two critical events occurred on the
3451school bus. First, Respondent observed A.D. making a gesture
3460that appeared to be consistent with a throwing motion. In
3470response to this gesture, Respondent stated over the bus ' public
3481address system the following: "[A.D.] what did I say?" Second,
3491Respondent, in anticipation of future misconduct by A.D.
3499announced "[i]f anybody sees (A.D.) throwing paper, you have my
3509permission to knock him out!"
351434. Respondent's accusatory qu estion to A.D., to wit : "what
3525did I say," is not "discipline" within the context of School
3536Board P olicy 4140 A.7. Respondent's accusatory question to A.D.
3546was nothing more than an attempt by Respondent to alert A.D. to
3558the fact that he was being observed by Respondent and that A.D.
3570should comport his behavior so as not to deviate from the rules
3582of the bus.
358535. Respondent's statement "[i]f anybody sees (A.D.)
3592throwing paper, you have my permission to knock him out!" was
3603clearly a solicitation to other stud ents wherein Respondent was
3613seeking help with controlling A.D. Similarly, this statement was
3622also a clarion call to A.D. to modify his behavior.
363236. As a predicate to the charge of using an inappropriate
3643method of discipline, an individual must first h ave authority to
3654impose discipline on a student. As stated by the transportation
3664department manager , Mr. Hagewood, "transportation does not decide
3672the discipline of a student." Therefore , Respondent, as a part
3682of the transportation department, does not h ave the authority to
3693discipline students. Since Respondent does not have the
3701authority to discipline, it is not appropriate to cite him for
3712violating Board Policy 4140 A.7. and , accordingly , no violation
3721of the same occurred.
3725B. Failure to Perform Duties
373037. Respondent was charged with violating Board Policy 4140
3739A.9a. This section of the policy prohibits support staff from
3749failing to perform the duties of their position. The School Bus
3760Driver Handbook (Handbook) enumerates, among other things, the
3768dut ies of a school bus driver.
377538. Section 2.02 of the Handbook provides , in part , as
3785follows:
3786A. Drivers will, at all times, operate their
3794buses in accordance with the requirements of
3801the Florida Traffic Laws, the requirements
3807of the State Board of Educatio n, and the
3816procedures detailed in this Handbook.
3821Drivers shall not leave the bus while
3828students are on board.
3832* * *
3835P. Drivers are required by Florida Statute and
3843Rules of the State Board of Education to
3851maintain order and good behavior by students
3858on their buses. Rules for student conduct
3865on school buses are set forth in the
3873Pinellas County School Board's Student Code
3879of Conduct. Drivers will make every
3885reasonable effort to deal with infractions
3891of the rules of student conduct and will, to
3900the bes t of their ability, maintain order
3908and good behavior by students on their
3915buses.
391639. On February 8, 2011, Respondent failed to maintain
3925order and good behavior by the students riding on his assigned
3936bus. Respondent's statement "[i]f anybody sees (A.D.) throwing
3944paper, you have my permission to knock him out!" was the cause of
3957the breach of order and good behavior by the students on the bus.
3970Immediately after Respondent advised the students that it was
3979permissible to knock A.D. out, several students scre amed on the
3990bus in response to Respondent's statement. Subsequent to
3998Respondent 's making the statement, other students got out of
4008their seats and walked the aisle for the sole purpose of
4019interacting with A.D. The culminating event occurred, of course,
4028wh en a student punched A.D. after he was given free rein to do so
4043by Respondent. Each of these events occurred while Respondent
4052was actively engaged in the process of driving the bus and
4063transporting students to their respective destinations.
4069Petitioner sa tisfied its burden and has proved by a preponderance
4080of the evidence that Respondent's conduct violated Board P olicy
40904140 A.9a.
4092C. Inappropriate Remarks and Exposing a Student to
4100Embarrassment , e tc .
410440. Respondent was charged with violating Board
4111P oli cy 4140 A.13. This section of the policy prohibits support
4123staff from making inappropriate or disparaging remarks to or
4132about students or exposing a student to unnecessary embarrassment
4141or disparagement. Respondent's statement "[i]f anybody sees
4148(A.D.) throwing paper, you have my permission to knock him out!"
4159was inappropriate and designed to unnecessarily embarrass A.D.
4167Equally inappropriate were Respondent's statements of February 9,
41752011, about A.D. Petitioner satisfied its burden and has proved
4185by a preponderance of the evidence that Respondent's conduct
4194violated Board Policy 4140 A.13.
4199D. Failure to Correct Performance
420441. Respondent was charged with violating Board
4211Policy 4140 A.19. This section of the policy provides that a
4222staff member can be disciplined for his/her failure to correct
4232certain performance deficiencies. On three occasions prior to
4240the events that provide the basis for the instant termination
4250action, Respondent was disciplined for violating Board P olicy
42594140, because he made ina ppropriate remarks to students. As
4269noted previously, Respondent , on February 8 and 9, 2011, again
4279made inappropriate remarks to students. Petitioner satisfied its
4287burden and has proved by a preponderance of the evidence that
4298Respondent's conduct violated Board Policy 4140 A.19.
4305E. Conduct Unbecoming a Board Employee
431142. Respondent was charged with violating Board Policy
43194140 A.21. This section of the policy provides that a staff
4330member can be disciplined for "[c]onduct unbecoming a Board
4339employee that brings the District into disrepute or that disrupts
4349the orderly processes of the District." Respondent's conduct on
4358February 8, 2011, of soliciting students to exact violence
4367against A.D. and on February 9, 2011, of manipulating students in
4378an attempt to have them support and otherwise validate his
4388behavior, are certainly acts that are unbecoming of a school
4398board employee. Respondent has failed , however, to prove that
4407Respondent's conduct either "brought the District into disrepute"
4415or that his conduct d isrupted "the orderly processes of the
4426District."
442743. After the respective incidents, A.D.'s mother
4434transferred him to another school. The parent's decision to
4443transfer A.D. to another school was not motivated by a desire to
4455avoid Respondent , but was i nstead motivated by the mother's
4465desire to "get away from that area" where they were living. The
4477parent of A.D. and the parent of the student that punched A.D.
4489were both understandably upset by Respondent's conduct. However,
4497there was no evidence offered that either parent, or members of
4508the general public, projected their feelings in such a way as to
4520hold the District in disrepute because of Respondent's conduct.
452944. Petitioner argues that Respondent's conduct disrupted
4536the orderly processes of the sc hool district in several ways.
4547First, Petitioner points to the fact that the administrative
4556hearing conducted herein is evidence of the disruption resulting
4565from Respondent's conduct. The "conduct" that necessitated the
4573need to have a c hapter 120 hearing was Respondent's "conduct" of
4585exercising his right to challenge Petitioner's proposed
4592termination of his employment. Petitioner, as required by
4600section 1012.40(2)(b) , and further as reflective in the
4608Collective Bargaining Agreement, acknowledges that emp loyees ,
4615such as Respondent , are entitled to challenge employment
4623termination decisions before a neutral tribunal. Petitioner's
4630suggestion that the orderly processes of the school district have
4640been disrupted by Respondent's act of exercising his right to
4650challenge the allegations leveled against him, and the resulting
4659inconvenience to Petitioner of having to produce witnesses to
4668testify at the disputed fact hearing, is rejected.
4676Respondent's act of exercising his right to challenge
4684Petitioner's allegations is not, as a matter of law, evidence of
4695disruption as contemplated by Board Policy 4140 A.21.
470345. Second, Petitioner cites as evidence of disruption the
4712fact that A.D.'s parent withdrew him from school "because a bus
4723driver encouraged her child to get punched." Petitioner's
4731assertion notwithstanding, A.D.'s mother transferred him to
4738another school because she wanted to move to a different area.
4749The evidence does not establish a causal connection between
4758Respondent's conduct and A.D. transferring to a nother school.
4767Even if such a causal connection were established, this would
4777certainly be evidence of how A.D.'s life was disrupted , but would
4788not necessarily be evidence of how the orderly processes of the
4799school district were disrupted. Similarly, the fact that the
4808student that punched A.D. faced criminal charges is not, in this
4819case, probative of how Respondent's conduct disrupted the orderly
4828processes of the school district.
4833F. Cellular Phone Use
483746. Article 33 of the Collective Bargaining Agreeme nt
4846provides , in part , as follows:
4851The parties acknowledge that during the
4857negotiations which resulted in this
4862Agreement, each had the unlimited right and
4869opportunity to make demands and proposals
4875with respect to any subject or matter not
4883removed by law fro m the area of collective
4892bargaining.
4893The parties affirm that after the exercise of
4901that right and opportunity, this Agreement
4907represents the complete and final
4912understanding and agreement on all
4917bargainable issues. Further, the parties
4922agree that during the term of this Agreement,
4930each voluntarily and unqualifiedly waives the
4936right and agrees that the other shall not be
4945obligated to bargain collectively with
4950respect to any matter or subject not referred
4958to or covered in this Agreement.
496447. Article 29, s ection 25, of the Collective Bargaining
4974Agreement provides , in part , as follows:
4980Use of Cell Phones/Pagers : Employees may be
4988in possession of a personal cell phone/pager.
4995However, they must be in an inactive or
5003monitoring status and may not be used for
5011p ersonal reasons during working hours except
5018as provided herein. Personal cell phones may
5025only be used during the employee's lunch time
5033while on duty. In an emergency situation, an
5041employee may be permitted to use his/her
5048personal cell phone. (Emphasis a dded).
505448. Section 7.09 of the Handbook provides that "[t]he use
5064of cellular telephones while driving a Pinellas County school bus
5074is STRICTLY PROHIBITED [and] [c]ellular telephones may be used on
5084a school bus only when the bus is parked."
509349. Article 29, section 25, of the Collective Bargaining
5102Agreement generally allows employees covered by the agreement to
5111use their personal cell phones during working hours only in
5121emergency situations. Section 7.09 of Handbook compliments the
5129Collective Bargaining Agreement by allowing bus drivers to use
5138cell phones on a school bus , but only when the bus is not being
5152driven.
515350. Respondent does not dispute that on February 8, 2011,
5163he used his cellular phone while driving his assigned school bus.
5174Respondent's defe nse as to this charge is based upon his
5185anecdotal observations that he has witnessed other drivers
5193operating school buses while talking on their cellular phones
5202with no resulting disciplinary action. Without more, such
5210anecdotal evidence is insufficient t o rebut Petitioner's evidence
5219that clearly shows that Respondent operat ed his assigned school
5229bus while using his cellular phone.
5235G. Failure to Comply W ith Policy, Law or Agreement
524551. Respondent was charged with violating Board P olicy 4140
5255A.2 4 . This s ection of the policy provides that a staff member
5269can be disciplined for a "[f]ailure to comply with Board policy,
5280State law, or appropriate contractual agreement." As noted
5288herein, Petitioner has proved by a preponderance of the evidence
5298that Respondent' s conduct violated Board P olicy 4140 and
5308Articles 24 and 29 of the Collective Bargaining Agreement.
5317H. Mitigation and Aggravation
532152. When determining the appropriate disciplinary sanction
5328to impose against a staff member, Board Policy 4140 C. directs
5339co nsideration of certain aggravating and mitigating factors.
5347Aggravation
534853. As a result of Respondent's conduct, there was a
5358substantial threat posed to the health, safety , and welfare
5367of A.D.
536954. Respondent's behavior of authorizing students to use
5377ph ysical force against another student and manipulating students
5386in an attempt to have them to support and otherwise validate his
5398behavior , is a significant violation of Board Policy 4140.
540755. Fortunately, the physical damage caused to A.D. by the
5417punch to his head was very limited in duration. It is unclear
5429however, if A.D. will suffer from long - term emotional damage as a
5442result of Respondent's behavior. Nevertheless, the evidence
5449presented during the disputed fact hearing clearly established
5457that Respond ent's conduct caused A.D. to fear riding the bus
5468operated by Respondent.
547156. Respondent seems to be an intelligent individual who
5480suffers from an inability to self - regulate the verbalization of
5491his thoughts. On three occasions prior to February 8, 2011,
5501Respondent was disciplined by Petitioner for making inappropriate
5509comments. Respondent's recent verbal transgressions are so
5516severe that they off - set any favorable consideration that should
5527be afforded Respondent for the time that has elapsed between
5537offe nses or the longevity of his tenure as a School Board
5549employee.
5550Mitigation
555157. While it is undisputed that Respondent drove his
5560assigned bus while talking on his cellular phone, the events
5570leading to A.D. being punched by another student did not occur
5581whi le Respondent was using his cellular phone. Furthermore, there
5591is no evidence that Respondent, prior to February 8, 2011, was
5602disciplined for operating his assigned bus while talking on his
5612cellular phone.
561458. Having considered all of the factors set fo rth in Board
5626Policy 4140, the undersigned concludes that there are no
5635mitigating factors that weigh in favor of action other than
5645termination of employment.
5648RECOMMENDATION
5649Based on the foregoing Findings of Fact and Conclusions of
5659Law, it is
5662RECOMMENDED t hat :
56661. Petitioner, Pinellas County School Board , dismiss the
5674charge against Respondent , Eric F. Thomas, Jr., which alleges
5683that Respondent violated Board Policy 4140 A.7.
56902. Petitioner terminate Respondent's employment as a school
5698bus driver as a cons equence of Respondent's violation of Board
5709Policy 4140 A.9a., A.13., A.19., and A.24. The violation of any
5720one of these subsections, standing alone, is sufficiently severe
5729so as to warrant Respondent's termination from employment as a
5739school bus driver.
57423. Petitioner dismiss the charge against Respondent which
5750alleges that Respondent violated Board Policy 4140 A.21. ( If
5760Petitioner disagrees with the recommendation that Respondent
5767should be terminated, then it is RECOMMENDED that Respondent,
5776consistent w ith Petitioner's system of progressive discipline, be
5785issued a letter of caution for operating his bus while using his
5797cellular phone. )
5800D ONE AND ENTERED this 4th day of May , 2012 , in Tallahassee,
5812Leon County, Florida.
5815S
5816LINZIE F. BOGAN
5819Administrative Law Judge
5822Division of Administrative Hearings
5826The DeSoto Building
58291230 Apalachee Parkway
5832Tallahassee, Florida 32399 - 3060
5837(850) 488 - 9675
5841Fax Filing (850) 921 - 6847
5847www.doah.state.fl.us
5848Filed with the Clerk of the
5854Division o f Administrative Hearings
5859this 4th day of May , 2012 .
5866ENDNOTE
58671/ All subsequent references to Florida Statutes will be to 2011,
5878unless otherwise indicated.
5881COPIES FURNISHED:
5883Gerard Robinson, Commissioner
5886Department of Education
5889Turlington Building, S uite 1514
5894325 West Gaines Street
5898Tallahassee, Florida 32399 - 0400
5903Charles M. Deal, General Counsel
5908Department of Education
5911Turlington Building, Suite 1244
5915325 West Gaines Street
5919Tallahassee, Florida 32399 - 0400
5924Dr. John A. Stewart
5928Interim Superintendent
5930Pinellas County School Board
5934301 4th Street Southwest
5938Largo, Florida 33770 - 2942
5943Laurie A. Dart, Esquire
5947Pinellas County Schools
5950301 4th Street, Southwest
5954Post Office Box 2942
5958Largo, Florida 33779 - 2942
5963Eric F. Thomas, Jr.
596714099 Belcher Road South, Lot 10 01
5974Largo, Florida 33771
5977NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
5983All parties have the right to submit written exceptions within
599315 days from the date of this Recommended Order. Any exceptions
6004to this Recommended Order should be filed with the agency that
6015will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 05/04/2012
- Proceedings: Recommended Order (hearing held January 19 and April 3, 2012). CASE CLOSED.
-
PDF:
- Date: 05/04/2012
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 04/16/2012
- Proceedings: Transcript (Volume I and III; not available for viewing) filed.
- Date: 04/03/2012
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 03/20/2012
- Proceedings: Petitioner's Notice of Compliance with Discovery List Request By Respondent Filed March 19, 2012 filed.
-
PDF:
- Date: 03/19/2012
- Proceedings: Petitioner's Notice of Filing Receipt of Personnel Records filed.
-
PDF:
- Date: 02/27/2012
- Proceedings: Letter to Laurie Dart from Eric F.Thomas requesting a copy of all personnel files (with fax cover sheet notations) filed.
-
PDF:
- Date: 02/23/2012
- Proceedings: Letter to E. Thomas from L. Dart regarding his request for copies of personnel records filed.
-
PDF:
- Date: 02/23/2012
- Proceedings: Letter to L. Dart from E. Thomas requesting persnnel files and transporation drivers files filed.
-
PDF:
- Date: 02/07/2012
- Proceedings: Order Re-scheduling Hearing (hearing set for April 3, 2012; 9:00 a.m.; Largo, FL).
-
PDF:
- Date: 02/03/2012
- Proceedings: Respondent's Response to Supplemental Order of Pre-hearing Instructions filed.
-
PDF:
- Date: 01/26/2012
- Proceedings: Petitioner's Response to Supplemental Order of Pre-Hearing Instructions filed.
- Date: 01/19/2012
- Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
-
PDF:
- Date: 01/17/2012
- Proceedings: Letter to Lori Dart from Eric Thomas regarding Respondent's Witness and Exhibit List filed.
-
PDF:
- Date: 01/17/2012
- Proceedings: Petitioner's Amended Motion to Allow Testimony of Witness Rosa Gibbs by Telephone filed.
-
PDF:
- Date: 01/17/2012
- Proceedings: Petitioner's Motion to Allow Testimony of Witness Rosa Gibbs by Telephone filed.
-
PDF:
- Date: 01/05/2012
- Proceedings: Subpoena Duces Tecum for Hearing (to Officer M. Griffiths) filed.
-
PDF:
- Date: 12/14/2011
- Proceedings: Subpoena Duces Tecum for Deposition (to R.C. for Bernie McCabe's Office) filed.
-
PDF:
- Date: 12/14/2011
- Proceedings: Notice of Taking Deposition (of R.C. for Bernie McCabe's Office) filed.
-
PDF:
- Date: 11/09/2011
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for January 19, 2012; 9:00 a.m.; Largo, FL).
Case Information
- Judge:
- LINZIE F. BOGAN
- Date Filed:
- 10/19/2011
- Date Assignment:
- 01/17/2012
- Last Docket Entry:
- 06/14/2012
- Location:
- Largo, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
- Suffix:
- TTS
Counsels
-
Laurie A. Dart, Esquire
Address of Record -
Eric F. Thomas, Jr.
Address of Record