11-005436TTS Pinellas County School Board vs. Eric F. Thomas, Jr. Status: Closed Recommended Order on Friday, May 4, 2012.

Summary: Petitioner met its burden of establishing just cause to warrant termination of Respondent's employment as a school bus driver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 11 - 5436TTS

)

ERIC F. THOMAS, JR. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to n otice, a final hearing in this cause was held

on January 19 and April 3, 2012, in Largo, Florida, Tallahassee,

Florida, before the Division of Administrative Hearings by its

designated Administrative Law Judge Linzie F. Bogan.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pinellas County Schools

301 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Eric F. Thomas, Jr., pro se

14099 Belcher Road South, Lot 1001

Largo, Florida 33771

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent from his

employment with the Pinellas County School Board.

PRELIMINARY STATEMENT

By correspondence dated April 5, 2011, Respondent, Eric F.

Thomas , Jr. (Respondent), was informed by Julie M. Janssen,

s uperintendent of Pinellas County Schools (Superintendent), that

a recommendation seeking the termination of Respondent's

employment would be submitted to Petitioner, Pinellas County

School Board (Petitioner/School Board) , for appropriate action.

In response to the correspondence of April 5, 2011, Respondent,

on April 26, 2011, timely filed a Request for Administrative

Hearing. By correspondence dated October 19, 2011, the matter

was forwarded to the Division of Administrative Hearings f or a

disputed fact hearing.

This final hearing in this matter was scheduled to commence

on January 10, 2012. Petitioner moved for a continuance , and the

final hearing was re - scheduled for January 19, 2012. During the

final hearing on January 19, 2012, i t was determined that a

second day would be needed for the presentation of evidence. By

agreement of the parties, April 3, 2012, was designated as the

day for submitting additional evidence.

Petitioner called Respondent to testify during its case - in -

chie f. Petitioner also offered the testimony of Amy Danson , A.M.

(student witness) , Rosa Gibbs , Michael Griffiths , William

Moan, Jr. , T. Mark Hagewood , and Valencia Walker. Respondent

testified on his own behalf and offered the testimony of Rose

Irizarry, Fe licia Salters, Sonya Roundtree, and James Lott.

Petitioner's Exhibits 1, 2A through 2G, 3 through 8, and 9A were

admitted into evidence. Respondent's Exhibits 1 through 3,

5 through 10, and 13 through 20 were admitted into evidence.

Respondent's Exhibit s 11 and 12 were officially recognized .

A three - volume Transcript of the proceeding was filed with

the Division of Administrative Hearings on April 16, 2012. The

parties timely filed proposed recommended orders , which have been

considered in the preparat ion of this Recommended Order.

FINDING S OF FACT

1. On January 23, 2006, Respondent was hired by Petitioner

to work as a school bus driver. The position of bus driver is

covered by the 2008 - 2011 Collective Bargaining Agreement between

The School Board of Pinellas County, Florida, and SEIU/Florida

Public Services Union, CTW - CLC (Collective Bargaining Agreement).

2. Respondent's employment disciplinary history with

Petitioner is as follows:

12/07/06 Respondent received a "Conference Summary"

for uncorrect ed job deficiencies and for

making inappropriate remarks to students;

05/06/08 Respondent received a "Caution" for making

inappropriate remarks to students;

05/22/08 Respondent received a "Reprimand" for failing

to comply with board policy, State law, or

the appropriate contractual agreement;

01/25/10 Respondent received a "Caution" for excessive

absenteeism;

03/26/10 Respondent received a "Caution" associated

with an accident/crash that he had while

operating his assigned school bus;

10/04/10 Responden t received a "Conference Summary"

for insubordination;

12/02/10 Respondent received a "Caution" for making

inappropriate and disparaging remarks to a

student; and

12/14/10 Respondent received a "Caution" associated

with an accident/crash that he had whil e

operating his assigned school bus.

3. During Respondent's term of employment with Petitioner,

his performance appraisals have been satisfactory with the

exception that on January 20, 2009, Respondent was advised that

he needed to improve his punctuali ty ; and on January 25, 2010, he

was told that his work attendance was unsatisfactory.

4. The passenger compartment of the school bus operated by

Respondent during all times relevant hereto is typical of most

school buses. There are two columns of seats separated by an

aisle for ingress and egress that runs the length of the bus.

Each column of seats is composed of approximately nine bench

seats.

5. The bus operated by Respondent was equipped with an

operable audio/video camera. The audio/video ca mera was mounted

at the front of the bus' passenger compartment and was positioned

such that it simultaneously recorded audio and images of the

passengers and of Respondent while he operated the bus.

6. The bus also has a mirror mounted forward of the driver

and above his head. When viewed from the seat of the driver of

the bus , the overhead mirror allows the driver to monitor some of

the activities of the passengers.

7. During all times relevant hereto, Respondent was

operating his assigned bus on the roads of Pinellas County,

Florida.

8. On February 8, 2011, student A.D. was a passenger on the

bus operated by Respondent. School had been released for the

day , and Respondent was transporting the students to their

appointed stops. A.D. was enroll ed as a middle school student

and the other 30 or so students that were on the bus on

February 8 and 9, 2011, appear from the audio/video recording to

be of an age similar to that of A.D.

9. On February 8, 2011, A.D. was seated in the third row

nearest Respondent and was, for the most part, positioned such

that his upper torso was angled towards the rear of the bus. At

approximately 4:22 p.m., A.D. is seen on the video making a

throwing motion with his right arm.

10. Within a second of A.D. completi ng the throwing motion,

Respondent remove d the sunglasses from his face and in an

agitated voice sa id , "(student's name) what did I say?"

Simultaneous to making the statement, Respondent also spread his

arms as an added gesture of frustration. Respondent 's facial

expression further reflect ed his feelings of frustration and

exasperation.

11. Approximately 14 seconds after calling out to A.D.,

Respondent picked up the microphone to the bus' public address

system and announced the following:

Respondent: He y! (1 second pause)

Respondent: If anybody sees (A.D.) throwing

paper, you have my permission to knock him

out!

12. According to Mr. Thomas Hagewood, who works for

Petitioner as manager of the transportation department, a

student's assigned school dete rmines appropriate disciplinary

action when a student commits an infraction while riding on a bus

operated by Petitioner. Employees, like Respondent, that are

assigned to Petitioner's transportation department are not

responsible for disciplining students .

13. Respondent testified as follows regarding his rationale

for authorizing the students on the bus to strike A.D.:

Respondent: Well, I felt like I had to just

bring A.D. down a peg because, like I said

before, in the beginning of the year -- this

has been an ongoing problem. I've written

him up, I've gone to the school, you know,

I've gone to my FOS (Field Operations

Supervisor) and I couldn't get anybody to

help me get this child under control. It

came to a point where we had a sixth grader

bullying 50 kids on the bus by throwing

pencils, crayons, paper, you name it, snot

rags.

It was just that particular day where even

after I told him before the bus pulled out of

the bus circle -- I asked him not to throw

anything, you know, and he did not listen to

me. He got on the bus. He continued to

throw stuff. I could hear the girls in the

back asking A.D. to stop, you know.

I just thought that if I embarrassed him a

little bit that it would work, you know, that

he would just stop for that moment, you know ,

just to leave everybody alone.

Counsel: So you intended to embarrass him?

Respondent: I intended to get his attention.

Counsel: Okay. You just said "I thought if

I embarrassed him."

Respondent: Well, okay. Yeah. I just

thought if I brought the attention on him

that, you know, he would stop doing what he

was doing.

Although Respondent testified that he had previously "written

A.D. up" for misconduct and complained repeatedly to school

officials about A . D . 's behavior, Respondent did not produce any

evidence to corroborate this testimony. Additionally, Petitioner

reviewed its files and did not locate any documentation to

substantiate Respondent's claim that he complained about A.D.'s

behavior prior to February 8, 2011. Respondent's testimony

reg arding his complaints about A.D. is not credible.

14. Immediately after Respondent finished announcing to the

students that it was permissible to "knock out" A.D., several

girls can be heard screaming in response to Respondent's

statement, and a male stud ent in a grey jacket is seen rising

from his seat and moving towards A.D. in a provocative manner

while stating something to A.D. that is inaudible. The student

in the grey jacket returned to his seat without incident.

15. A few moments later, a male stu dent in a white hat , who

was initially positioned a few seats behind A.D., is seen on the

video making his way towards A.D. The student in the white hat

eventually positions himself in the seat diagonal from A.D. At

approximately 4:24 p.m. , the student i n the white hat is seen on

the video standing over A.D. and throwing a punch at A.D. that

appears not to have been intended to strike A.D. After throwing

the counterfeit punch, the student in the white hat returned to

his seat and pointed his right index finger at A.D. It is not

decipherable from the audio what, if anything, the student in the

white hat said to A.D. while gesturing with his finger.

16. Over the next 30 seconds or so, the student in the

white hat is seen on the video poking A.D. Both stu dents are

seated while this is occurring. At approximately 4:25 p.m. , the

student in the white hat rises from his seat, positions himself

in a fighting stance while standing over A.D., and throws a right

hand punch that strikes A.D. 's head. Immediately a fter being

punched, A.D. sinks into his seat and disappears from the view of

the camera.

17. Approximately 15 seconds after A.D. was punched, a

female student in a grey jacket makes her way from the back of

the bus and leans over A.D. After leaning ove r A.D. for

approximately three seconds, the female student walks back to her

seat. It is not known what, if anything, the female student said

to A.D.

18. Approximately ten seconds later, a female student in a

cream - colored jacket rises from her seat near the rear of the

bus, walks down the aisle, and positions herself in the seat

across from A.D. The student leans over A.D. and can be seen

patting A.D. in such a way as to suggest that she was providing

A.D. with comfort and support. After several second s, the female

student in the cream - colored jacket rises and returns to her seat

at the back of the bus.

19. Throughout the remaining portion of the video from

February 8, 2011, A.D. remains crouched down in his seat and

hidden from the video , except for a m omentary instance when he

rises from his seat and throws a punch at the student seated

behind him. Respondent did not re act to A.D. having thrown a

punch at another student because Respondent, at the time the

punch was thrown, was driving the bus whil e using his cell phone.

Additionally, at other times on February 8, 2011, students on the

bus were leaving their seats, walking up and down the aisle, and

throwing objects about the bus. These activities went unnoticed

by Respondent because he was distra cted by talking on his

cellular phone while operating the bus.

20. The following morning, Respondent, while transporting

the students to school, made the following announcement over the

public announcement system:

Respondent: Hey, real quick. Who woul d

ya'll say the main person is that is always

throwing stuff on this bus?

Students: (Students yell out A.D.'s name)

Respondent: Okay. They are probably going

to question ya'll since he isn't on the bus.

He probably told his parents about something

tr ying to get me fired or something, you know

whatever.

Student: We got your back Mr. Thomas!

Respondent: Alright.

21. A.D. sustained physical injuries and sought medical

treatment as a consequence of receiving the punch to his head.

A.D. reported the incident to his mom who was extremely upset by

the fact that Respondent, as a school board employee, would

encourage students to engage in acts of violence. At 5:05 p.m. ,

on February 8, 2011, A.D.'s mom called Respondent to report the

incident. After th e incident of February 8, 2011, A.D. was

afraid to ride the bus operated by Respondent. A.D.'s mother

moved her place of residency and transferred A.D. to another

school because she wanted to "get away from that area" where she

and A.D. lived at the time.

22. The student that struck A.D. was arrested and charged

with battery. The offending student successfully completed the

juvenile diversion program. The mother of the student that

struck A.D. was also outraged by Respondent's conduct of

encouraging students on the bus to engage in acts of violence.

23. Around February 8, 2011, Respondent was going through a

stressful domestic situation related to him gaining custody of

his son. As a consequence of his domestic instability,

Respondent was experien cing a great deal of subjective emotional

distress to the extent that he felt like a "bottle about to pop."

24. As previously noted, Respondent, on December 2, 2010,

was issued a letter of caution for using inappropriate language

while on the bus with mi ddle school students. As a part of the

process for addressing the incident of December 2, 2010,

Respondent agreed to voluntarily attend a student management

class that is tailored towards bus drivers. A confluence of

factors contributed to Respondent not taking the student

management class. First, Respondent missed work for a period of

time due to a workers' compensation injury. Second, the school

district was closed several weeks for winter break. Third, due

to a rotation of managerial personnel by Pe titioner, the

individuals that were aware of Respondent's request to take the

student management class were given new assignments such that

they no longer supervised Respondent. Finally, and most

importantly, Respondent showed no initiative upon his retur n to

work in taking the steps necessary to inform his new superiors

about his desire to enroll in the student management training

course.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011). 1/

26. Petitioner seeks to terminate Respondent's employment.

Petitioner bears the burden of proving by a preponderance of the

evidence that just cause exists for Respondent's terminatio n.

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d

DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883

(Fla. 3d DCA 1990).

27. As a member of the transportation department of the

School Board, Respondent is considered an education al support

employee. §§ 1012.01(6) and 1012.40(1)(a).

28. Section 1012.40(2)(b) provides in part that "[u]pon

successful completion of the probationary period by the

[educational support] 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. . . ." At the time of the

events that provide the basis for the instant action, Respondent

had successfully completed his term of probationary employment.

29. Article 24, section 1, of the Collective Bargaining

Agreement provides , in part , that "[t]he provisions of Board

Policy 8.25 shall define just cause [and] [s]hould the

superintendent seek termination of an employee, the exclu sive

forum of appeal shall be through the Administrative Procedures

Act (Chapter 120, Florida Statutes)." Board Policy 8.25 has been

re - designated as School Board of Pinellas County Policy 4140

(Board Policy 4140). Board Policy 4140 applies to Respondent .

30. Board Policy 4140 authorizes the s uperintendent to

recommend to the School Board that disciplinary action, including

termination, be taken against covered personnel that violate the

policy .

31. Board Policy 4140 provides, in part, as follows:

S upport staff may be dismissed for cause.

* * *

The Superintendent retains the right and the

responsibility to manage the work force. The

School District generally follows a system of

progressive discipline in dealing with

deficiencies in employee wo rk performance or

conduct. Progressive discipline may include,

but is not limited to, written

counseling/conference summary, caution,

reprimand, suspension without pay, and

dismissal defined as follows:

A. Written Counseling/Conference Summary --

This is a written memorandum or letter

memorializing an area of concern involving

the performance or conduct of the

employee. It is the first step in

progressive discipline and is intended to

counsel and advise the employee of best

practices.

B. Letter of Caution -- A letter of caution is

given to an employee who has demonstrated

problematic behavior or performance. It

is the second step in progressive

discipline and is intended to alert the

employee that a problem has been

identified and needs to be corrected.

C. Reprimand -- A written reprimand is more

serious than a caution. It is a formal

censure or admonition given to an employee

who has engaged in unacceptable behavior

or demonstrated unacceptable performance.

D. Suspension Without Pay -- A suspension

without p ay is the temporary release from

duty of an employee for a stated number of

calendar days without pay and applies when

a violation or repetition of violations of

policies, contractual provisions, laws, or

District expectations are serious enough

to warrant suspension.

E. Dismissal -- This is the final step in

progressive discipline and applies in

cases where the employee misconduct is

severe or in cases where the misconduct or

unacceptable behavior or performance is

repetitive and the progressive discipline

procedures have not corrected the

problems.

The severity of the problem or employee

conduct will determine whether all steps will

be followed or a recommendation will be made

for suspension without pay or dismissal.

When there is a range of penalties,

ag gravating or mitigating circumstances will

be considered. The following offenses are

subject to the penalties described below:

PENALTY

VIOLATIONS OFFENSE RANGE

A.7. Use of corporal Conference

punishment, excessive Summary --

force or inappropriate Dismissal

method of discipline

A.9a. Failure to perform the Caution --

duties of the position Dismissal

A.13. Inappropriate or Conference

disparaging remarks to Summary --

or about students or Dismissal

exposing a student to

unnecessary

embarrassment of

disparagement

A.19 Failure to correct Conference

performance Summary --

Dismissal

A.21 Conduct unbecoming a Caution --

Board employee that Dismissal

brings the District into

disrepute or that

disrupts the orderly

processes of the

District

A.24 Failure to comply with Caution --

Board policy, State law, Dismissal

or appropriate

contractual agreement

* * *

C. The following aggravating and mitigating

factors or circumstances will be

considered when determining the

appropriate penalty within a penalty

range:

1. the threat posed to the health, safety or

welfare of students, co - workers, or

members of the public;

2. the severity of the offense;

3. degree of student involvement;

4. the disciplinary history of the employee,

including the number of offenses, the

len gth of time between offenses as well

as the similarity of offenses;

5. the actual damage, physical or otherwise,

caused by the misconduct;

6. any effort of rehabilitation by the

employee;

7. attempts by the employee to correct or

stop the misconduct;

8 . pecuniary benefit or self - gain to the

employee realized by the misconduct;

9. impact of offense on students,

co - workers, or members of the public;

10. length of employment;

11. whether the misconduct was motivated by

unlawful discrimination;

12. empl oyee's evaluations; [and]

13. any other relevant mitigating or

aggravating factors[.]

A. Inappropriate Method of Discipline

32. Respondent was charged with violating Board P olicy 4140

A.7. This section of the policy prohibits support staff, like

Respo ndent, from using corporal punishment, excessive force or

inappropriate methods of discipline on a student. According to

Petitioner, Respondent was charged with this violation because he

"did not use an appropriate method of discipline as a bus driver

on the school bus."

33. As to this charge, two critical events occurred on the

school bus. First, Respondent observed A.D. making a gesture

that appeared to be consistent with a throwing motion. In

response to this gesture, Respondent stated over the bus ' public

address system the following: "[A.D.] what did I say?" Second,

Respondent, in anticipation of future misconduct by A.D.

announced "[i]f anybody sees (A.D.) throwing paper, you have my

permission to knock him out!"

34. Respondent's accusatory qu estion to A.D., to wit : "what

did I say," is not "discipline" within the context of School

Board P olicy 4140 A.7. Respondent's accusatory question to A.D.

was nothing more than an attempt by Respondent to alert A.D. to

the fact that he was being observed by Respondent and that A.D.

should comport his behavior so as not to deviate from the rules

of the bus.

35. Respondent's statement "[i]f anybody sees (A.D.)

throwing paper, you have my permission to knock him out!" was

clearly a solicitation to other stud ents wherein Respondent was

seeking help with controlling A.D. Similarly, this statement was

also a clarion call to A.D. to modify his behavior.

36. As a predicate to the charge of using an inappropriate

method of discipline, an individual must first h ave authority to

impose discipline on a student. As stated by the transportation

department manager , Mr. Hagewood, "transportation does not decide

the discipline of a student." Therefore , Respondent, as a part

of the transportation department, does not h ave the authority to

discipline students. Since Respondent does not have the

authority to discipline, it is not appropriate to cite him for

violating Board Policy 4140 A.7. and , accordingly , no violation

of the same occurred.

B. Failure to Perform Duties

37. Respondent was charged with violating Board Policy 4140

A.9a. This section of the policy prohibits support staff from

failing to perform the duties of their position. The School Bus

Driver Handbook (Handbook) enumerates, among other things, the

dut ies of a school bus driver.

38. Section 2.02 of the Handbook provides , in part , as

follows:

A. Drivers will, at all times, operate their

buses in accordance with the requirements of

the Florida Traffic Laws, the requirements

of the State Board of Educatio n, and the

procedures detailed in this Handbook.

Drivers shall not leave the bus while

students are on board.

* * *

P. Drivers are required by Florida Statute and

Rules of the State Board of Education to

maintain order and good behavior by students

on their buses. Rules for student conduct

on school buses are set forth in the

Pinellas County School Board's Student Code

of Conduct. Drivers will make every

reasonable effort to deal with infractions

of the rules of student conduct and will, to

the bes t of their ability, maintain order

and good behavior by students on their

buses.

39. On February 8, 2011, Respondent failed to maintain

order and good behavior by the students riding on his assigned

bus. Respondent's statement "[i]f anybody sees (A.D.) throwing

paper, you have my permission to knock him out!" was the cause of

the breach of order and good behavior by the students on the bus.

Immediately after Respondent advised the students that it was

permissible to knock A.D. out, several students scre amed on the

bus in response to Respondent's statement. Subsequent to

Respondent 's making the statement, other students got out of

their seats and walked the aisle for the sole purpose of

interacting with A.D. The culminating event occurred, of course,

wh en a student punched A.D. after he was given free rein to do so

by Respondent. Each of these events occurred while Respondent

was actively engaged in the process of driving the bus and

transporting students to their respective destinations.

Petitioner sa tisfied its burden and has proved by a preponderance

of the evidence that Respondent's conduct violated Board P olicy

4140 A.9a.

C. Inappropriate Remarks and Exposing a Student to

Embarrassment , e tc .

40. Respondent was charged with violating Board

P oli cy 4140 A.13. This section of the policy prohibits support

staff from making inappropriate or disparaging remarks to or

about students or exposing a student to unnecessary embarrassment

or disparagement. Respondent's statement "[i]f anybody sees

(A.D.) throwing paper, you have my permission to knock him out!"

was inappropriate and designed to unnecessarily embarrass A.D.

Equally inappropriate were Respondent's statements of February 9,

2011, about A.D. Petitioner satisfied its burden and has proved

by a preponderance of the evidence that Respondent's conduct

violated Board Policy 4140 A.13.

D. Failure to Correct Performance

41. Respondent was charged with violating Board

Policy 4140 A.19. This section of the policy provides that a

staff member can be disciplined for his/her failure to correct

certain performance deficiencies. On three occasions prior to

the events that provide the basis for the instant termination

action, Respondent was disciplined for violating Board P olicy

4140, because he made ina ppropriate remarks to students. As

noted previously, Respondent , on February 8 and 9, 2011, again

made inappropriate remarks to students. Petitioner satisfied its

burden and has proved by a preponderance of the evidence that

Respondent's conduct violated Board Policy 4140 A.19.

E. Conduct Unbecoming a Board Employee

42. Respondent was charged with violating Board Policy

4140 A.21. This section of the policy provides that a staff

member can be disciplined for "[c]onduct unbecoming a Board

employee that brings the District into disrepute or that disrupts

the orderly processes of the District." Respondent's conduct on

February 8, 2011, of soliciting students to exact violence

against A.D. and on February 9, 2011, of manipulating students in

an attempt to have them support and otherwise validate his

behavior, are certainly acts that are unbecoming of a school

board employee. Respondent has failed , however, to prove that

Respondent's conduct either "brought the District into disrepute"

or that his conduct d isrupted "the orderly processes of the

District."

43. After the respective incidents, A.D.'s mother

transferred him to another school. The parent's decision to

transfer A.D. to another school was not motivated by a desire to

avoid Respondent , but was i nstead motivated by the mother's

desire to "get away from that area" where they were living. The

parent of A.D. and the parent of the student that punched A.D.

were both understandably upset by Respondent's conduct. However,

there was no evidence offered that either parent, or members of

the general public, projected their feelings in such a way as to

hold the District in disrepute because of Respondent's conduct.

44. Petitioner argues that Respondent's conduct disrupted

the orderly processes of the sc hool district in several ways.

First, Petitioner points to the fact that the administrative

hearing conducted herein is evidence of the disruption resulting

from Respondent's conduct. The "conduct" that necessitated the

need to have a c hapter 120 hearing was Respondent's "conduct" of

exercising his right to challenge Petitioner's proposed

termination of his employment. Petitioner, as required by

section 1012.40(2)(b) , and further as reflective in the

Collective Bargaining Agreement, acknowledges that emp loyees ,

such as Respondent , are entitled to challenge employment

termination decisions before a neutral tribunal. Petitioner's

suggestion that the orderly processes of the school district have

been disrupted by Respondent's act of exercising his right to

challenge the allegations leveled against him, and the resulting

inconvenience to Petitioner of having to produce witnesses to

testify at the disputed fact hearing, is rejected.

Respondent's act of exercising his right to challenge

Petitioner's allegations is not, as a matter of law, evidence of

disruption as contemplated by Board Policy 4140 A.21.

45. Second, Petitioner cites as evidence of disruption the

fact that A.D.'s parent withdrew him from school "because a bus

driver encouraged her child to get punched." Petitioner's

assertion notwithstanding, A.D.'s mother transferred him to

another school because she wanted to move to a different area.

The evidence does not establish a causal connection between

Respondent's conduct and A.D. transferring to a nother school.

Even if such a causal connection were established, this would

certainly be evidence of how A.D.'s life was disrupted , but would

not necessarily be evidence of how the orderly processes of the

school district were disrupted. Similarly, the fact that the

student that punched A.D. faced criminal charges is not, in this

case, probative of how Respondent's conduct disrupted the orderly

processes of the school district.

F. Cellular Phone Use

46. Article 33 of the Collective Bargaining Agreeme nt

provides , in part , as follows:

The parties acknowledge that during the

negotiations which resulted in this

Agreement, each had the unlimited right and

opportunity to make demands and proposals

with respect to any subject or matter not

removed by law fro m the area of collective

bargaining.

The parties affirm that after the exercise of

that right and opportunity, this Agreement

represents the complete and final

understanding and agreement on all

bargainable issues. Further, the parties

agree that during the term of this Agreement,

each voluntarily and unqualifiedly waives the

right and agrees that the other shall not be

obligated to bargain collectively with

respect to any matter or subject not referred

to or covered in this Agreement.

47. Article 29, s ection 25, of the Collective Bargaining

Agreement provides , in part , as follows:

Use of Cell Phones/Pagers : Employees may be

in possession of a personal cell phone/pager.

However, they must be in an inactive or

monitoring status and may not be used for

p ersonal reasons during working hours except

as provided herein. Personal cell phones may

only be used during the employee's lunch time

while on duty. In an emergency situation, an

employee may be permitted to use his/her

personal cell phone. (Emphasis a dded).

48. Section 7.09 of the Handbook provides that "[t]he use

of cellular telephones while driving a Pinellas County school bus

is STRICTLY PROHIBITED [and] [c]ellular telephones may be used on

a school bus only when the bus is parked."

49. Article 29, section 25, of the Collective Bargaining

Agreement generally allows employees covered by the agreement to

use their personal cell phones during working hours only in

emergency situations. Section 7.09 of Handbook compliments the

Collective Bargaining Agreement by allowing bus drivers to use

cell phones on a school bus , but only when the bus is not being

driven.

50. Respondent does not dispute that on February 8, 2011,

he used his cellular phone while driving his assigned school bus.

Respondent's defe nse as to this charge is based upon his

anecdotal observations that he has witnessed other drivers

operating school buses while talking on their cellular phones

with no resulting disciplinary action. Without more, such

anecdotal evidence is insufficient t o rebut Petitioner's evidence

that clearly shows that Respondent operat ed his assigned school

bus while using his cellular phone.

G. Failure to Comply W ith Policy, Law or Agreement

51. Respondent was charged with violating Board P olicy 4140

A.2 4 . This s ection of the policy provides that a staff member

can be disciplined for a "[f]ailure to comply with Board policy,

State law, or appropriate contractual agreement." As noted

herein, Petitioner has proved by a preponderance of the evidence

that Respondent' s conduct violated Board P olicy 4140 and

Articles 24 and 29 of the Collective Bargaining Agreement.

H. Mitigation and Aggravation

52. When determining the appropriate disciplinary sanction

to impose against a staff member, Board Policy 4140 C. directs

co nsideration of certain aggravating and mitigating factors.

Aggravation

53. As a result of Respondent's conduct, there was a

substantial threat posed to the health, safety , and welfare

of A.D.

54. Respondent's behavior of authorizing students to use

ph ysical force against another student and manipulating students

in an attempt to have them to support and otherwise validate his

behavior , is a significant violation of Board Policy 4140.

55. Fortunately, the physical damage caused to A.D. by the

punch to his head was very limited in duration. It is unclear

however, if A.D. will suffer from long - term emotional damage as a

result of Respondent's behavior. Nevertheless, the evidence

presented during the disputed fact hearing clearly established

that Respond ent's conduct caused A.D. to fear riding the bus

operated by Respondent.

56. Respondent seems to be an intelligent individual who

suffers from an inability to self - regulate the verbalization of

his thoughts. On three occasions prior to February 8, 2011,

Respondent was disciplined by Petitioner for making inappropriate

comments. Respondent's recent verbal transgressions are so

severe that they off - set any favorable consideration that should

be afforded Respondent for the time that has elapsed between

offe nses or the longevity of his tenure as a School Board

employee.

Mitigation

57. While it is undisputed that Respondent drove his

assigned bus while talking on his cellular phone, the events

leading to A.D. being punched by another student did not occur

whi le Respondent was using his cellular phone. Furthermore, there

is no evidence that Respondent, prior to February 8, 2011, was

disciplined for operating his assigned bus while talking on his

cellular phone.

58. Having considered all of the factors set fo rth in Board

Policy 4140, the undersigned concludes that there are no

mitigating factors that weigh in favor of action other than

termination of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat :

1. Petitioner, Pinellas County School Board , dismiss the

charge against Respondent , Eric F. Thomas, Jr., which alleges

that Respondent violated Board Policy 4140 A.7.

2. Petitioner terminate Respondent's employment as a school

bus driver as a cons equence of Respondent's violation of Board

Policy 4140 A.9a., A.13., A.19., and A.24. The violation of any

one of these subsections, standing alone, is sufficiently severe

so as to warrant Respondent's termination from employment as a

school bus driver.

3. Petitioner dismiss the charge against Respondent which

alleges that Respondent violated Board Policy 4140 A.21. ( If

Petitioner disagrees with the recommendation that Respondent

should be terminated, then it is RECOMMENDED that Respondent,

consistent w ith Petitioner's system of progressive discipline, be

issued a letter of caution for operating his bus while using his

cellular phone. )

D ONE AND ENTERED this 4th day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

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 o f Administrative Hearings

this 4th day of May , 2012 .

ENDNOTE

1/ All subsequent references to Florida Statutes will be to 2011,

unless otherwise indicated.

COPIES FURNISHED:

Gerard Robinson, Commissioner

Department of Education

Turlington Building, S uite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. John A. Stewart

Interim Superintendent

Pinellas County School Board

301 4th Street Southwest

Largo, Florida 33770 - 2942

Laurie A. Dart, Esquire

Pinellas County Schools

301 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Eric F. Thomas, Jr.

14099 Belcher Road South, Lot 10 01

Largo, Florida 33771

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.