13-001249 Pinellas County School Board vs. Belinda S. Ivey Status: Closed Recommended Order on Tuesday, August 20, 2013.

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. 13 - 1249

BELINDA S. IVEY ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final hearin g in this cause was held

on June 13, 2013, in Largo, Florida, before the Division of

Administrative Hearings (D OAH ) by its designated Administrative

Law Judge Lynne A. Quimby - Pennock.

APPEARANCES

For Petitioner: Laurie A. Dart, Esquire

Pi nellas County Schools

301 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Belinda Ivey , pro se

3612 Tifton Street North

St. Petersburg, Florida 33713

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Ms. Ivey from her

employment with the Pinellas County School Board.

PRELIMINARY STATEMENT

By correspondence dated Ma r ch 19 , 201 3 , Respondent , Beli nda

Ivey (a/k/a Belinda S. Watson), was informed by the

superintendent , Michael A. Grego, Ed.D., that a recommendation

seeking the termination of her employment would be submitted to

Petitioner, Pinellas County School Board (Petitioner or School

Board) for appropriate action. In response to the March 19

correspondence, Ms. Ivey timely filed a Request for

Administrative Hearing. T he matter was forwarded to DOAH for a

disputed fact hearing on April 11 . Th e final hearing in this

matter was scheduled for and held o n J u n e 1 3, 2013 .

Petitioner called Ms. Ivey, Courtney McClendon, Michael

Walker, Mary Sue Cross, Christine Coston , T. Mark Hagewood, and

Valencia Walker to testify . Ms. Ivey testified on h er own

behalf. Petitioner ' s Exhibits 3 through 16 1/ were admitted into

evidence. 2/ Ms. Ivey ' s Exhibit 1 was admitted into evidence.

A one - volume Transcript of the proceeding was filed with

DOAH on July 5 , 201 3 . Petitioner requested to file its P roposed

R ecommended O rder (PRO) 20 days following the filing of the

transcript. Ms. Ivey did not object and t he request was granted.

Petitioner timely filed its PRO which has been considered in the

preparation of this Recommended Order. To date, Ms. Ivey has not

filed a PRO.

FINDING S OF FACT

1 . In 2005, Ms. Ivey was hired by the School Board to work

as a school bus driver (bus driver) . The position of school bus

driver is covered by the 2012 - 2015 Collective Bargaining

Agreement between the School Board of Pinellas County, Florida,

and SEIU/Florida Public Services Union, CTW - CLC (Collective

Bargaining Agreement).

2. One of the many requirements to operate a Pinellas

County school bus is to undergo a medical/physical examination

every year. Among the physical requirements, bus drivers are to

maintain at least 20/ 40 vision in each eye (with or without

corrective lenses).

3. On Wednesday, January 23, 2013, Ms. Ivey underwent her

yearly physical examination (exam). As a result of this exam,

Ms. Ivey ' s " Work Status " was " PE on hold , " meaning Ms. Ivey was

not able to work as a bus driver until some corrective measures

involving her eyesight were obtained.

4. Ms. Ivey completed her morning bus routes prior to her

exam on January 23. After her exam, Ms. Ivey called in sick and

did not complete her afternoon school bu s routes. On January 24,

Ms. Ivey completed both her morning and afternoon bus routes

without inciden t . H owever , she took sick leave for the remainder

of January 2013 (five work days). Ms. Ivey ' s first day back from

her sick leave was February 4, 2013.

5. Each school bus i s equipped with a global positioning

system (GPS) monitoring device. Once the school bus is turned on

the GPS automatically records the school bus position every 30

seconds . The GPS also records other activities that the school

bus p erforms, e . g ., when the amber caution lights are turned on

or off , when the red stop lights are turned on or off , when the

entrance door opens or closes, etc. Because of the cost of fuel,

the School Board ' s policy is that no school bus idles for more

than five minutes. If a bus must idle for more than five

minutes, the bus driver is required to turn off the bus until it

needs to move.

6. Each school bus is required to stop at each assigned bus

stop whether or not a student is present. This is to maintai n

the published schedule for subsequent school bus riders.

7. Each school bus is also equipped with a two - way radio

for constant communication with Petitioner ' s transportation

dispatchers. I n the event of an incident (or accident), there is

an additional emergency channel for use by the dispatcher and the

affected school bus driver.

8. Prior to each school year, school bus drivers are

provided training in how to handle an incident (or accident).

When an incident occurs, the driver is to immediately cont act the

transportation dispatcher, remain at the scene of the incident,

ensure the safety of the students, and cooperate fully with the

investigation. The bus driver is to complete an incident report

and turn it in to the transportation division before th e end of

the incident day.

9. The school bus that Ms. Ivey drove on February 4, 2013,

was equipped with the two - way radio and the GPS.

10. Ms. Ivey ' s published/authorized school bus route (for

the middle school pick - up) started at 8:15 a.m. each morning when

she was to pick up her riding assistant, Courtney McClendon, 3/ at

102 nd Avenue and Seminole Boulevard. This stop was in a large

parking lot, close to a Little Caesar ' s restaurant (restaurant).

The second bus stop, where the first student was to be p icked up,

was located at 97 th Street North and Lake Seminole Drive East

(corner location). Without the School Board ' s permission or

authorization, Ms. Ivey unilaterally changed her school bus route

to begin with the student pick - up at the corner location.

11. On February 4, Ms. Ivey began her middle school bus

route at the corner location. According to the GPS, Ms. Ivey

entered the corner location neighborhood at 8:32 a.m., and could

not have been at the designated corner location bus stop at

8:18 a.m. The student ride r was not at th e corner location when

the school bus arrived. There was no indication, via the GPS,

that either the amber caution or red stop lights were activated

for this stop, or that the entrance door opened or closed to

allow a stud ent to enter the bus.

12. Ms. Ivey turned the school bus onto 97 th Street and

stopped at the red light at 102 nd Avenue (stop light corner). As

Ms. Ivey was looking left (in order to turn right), she heard a

knock on the school bus door, but did not see t he student.

Ms. Ivey completed the right - turn onto 102 nd Avenue West and

then, in her right rear - view mirror noticed a student falling

down. Ms. Ivey did not immediately stop the school bus, but

drove to the restaurant approximately two minutes away. T here,

Ms. Ivey turned on her amber lights and opened the door for

Ms. McClendon to board the school bus.

13. While at the restaurant, Ms. Ivey radioed Petitioner ' s

transportation dispatcher that she might have hit a student.

Ms. Ivey left the restaura nt and drove back to the corner

location. Despite having a two - way radio on board the school bus

and repeated attempts by the dispatcher to contact her , Ms. Ivey

and the dispatcher failed to communicate again for over

45 minutes.

14. Upon notification o f the incident, the transportation

dispatcher switched to the emergency frequency ; however , Ms. Ivey

stayed on the regular two - way radio frequency.

15. Two transportation supervisors were immediately

dispatched to investigate the incident at the restaur ant, as this

was the location where the incident was reported. Once they

arrived, the supervisors were unable to locate the school bus,

Ms. Ivey, or Ms. McClendon ( the trio) at or near the restaurant.

In an effort to locate the trio, the supervisors trave led to

several more school bus stops, but only found students waiting

for the school bus. 4/ After searching for over 45 minutes, the

supervisors finally located the trio at the corner location. At

that time the transportation supervisors determined that the stop

light corner location was where the incident actually occurred.

16. One week after the incident, on February 11, Ms. Ivey

completed and turned in the " DRIVER ' S REPORT OF INCIDENT. "

Petitioner ' s field operations supervisor, Ms. Cross had to make

repeated requests to Ms. Ivey to get her to turn in the report.

17. On three separate occasions, Ms. Ivey was noticed to

appear at the Office of Professional Standards to answer

questions regarding the January medical issue and the

February 4 th inciden t. At the meeting on February 20, 2013,

Ms. Ivey refused to answer questions about either matter. During

the second meeting on February 28, shortly after the meeting

began, Ms. Ivey asked to use the restroom, left the room, and

never returned to complet e the meeting. Although she was noticed

for the third meeting to begin at 7:30 a.m. on March 4, Ms. Ivey

did not arrive for th at meeting until after 3:00 p.m. During

this third meeting, Ms. Ivey again refused to answer questions

about either matter.

1 8 . Ms. Ivey ' s employment disciplinary history with the

School Board is as follows:

02/08/10 Ms. Ivey received a " Conference

Summary " for failing to correct performance

deficiencies;

02/18/10 Ms. Ivey received a Conference

Summary " for failin g to comply with board

policy, s tate law, or appropriate contractual

agreement;

10/20/11 Ms. Ivey received a " Caution " for

failin g to comply with board policy, s tate

law, or the appropriate contractual agreement

and m isconduct;

05/23/12 Ms. Ivey received a " Reprimand " f or

failing to perform the duties of the position

and failing to correct performance

deficiencies;

12/15/12 Ms. Ivey received a " Reprimand " for

failing to perform the duties of the position

and failing to correct performance

deficiencies; and

02/20/13 Ms. Ivey received a " Conference

Summary " for failing to perform the duties of

the position and failing to correct

performance deficiencies.

19. Despite repeated opportunities to provide her version

of the events, Ms. Ivey declined to present her case in a manner

that would warrant serious consideration.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (201 2 ). 5/

21 . Petitioner seek s to terminate Ms. Ivey ' s employment.

Petitioner bears the burden of proving by a preponderance of the

evidence that just cause exists for Ms. Ivey ' s termination.

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

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

(Fla. 3d DCA 1990).

22 . As a member of the transportation department of the

School Board, Ms. Ivey is considered an educational support

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

23 . Section 1012.40(2)(b) provides in p art 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

coll ective bargaining agreement , . . . " At the time of the

incident s that provide the basis for the instant action, Ms. Ivey

had successfully completed h er term of probationary employment.

2 4 . Article 23, (Discipline) of the Collective Bargaining

Agreement provides, in part,

A. The parties are committed to progressive

discipline. Progressive discipline is a

process for dealing with job - related behavior

that does not meet expected and communicated

performance standards. The primary purpose

for progressive discipline is to assist the

employee to understand that a performance

problem presents an opportunity for

improvement. . . . The goal of progressive

discipline is to improve employee

performance. . . . Failing that, progressive

discipline enables the bo ard to fairly, and

with due process, terminate the employment of

employees who are ineffective and unwilling

or unable to improve.

* * *

C. The board shall generally follow a system

of progressive discipline that may include,

but not be limited to, the use of:

(1) 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 emp loyee of best

practices.

(2) Letter of Concern

(3) Written reprimand

(4) Suspension without pay

(5) Dismissal

The severity of the problem or employee

behavior will determine whether all steps

will be followed in successive order or a

recommendation will b e made for . . .

dismissal. . . .

D. When a recommendation is made for

imposition of . . . dismissal, employees

shall be entitled to an administrative

hearing before an impartial administrative

law judge as provided under the

Administrative Procedure Ac t (F.S. Chapter

120) and shall be entitled to all the rights

provided under that Act including the right

to be represented by counsel or qualified

representative. The provisions of Board

Policy 4140 will define just cause for . . .

dismissal.

25 . Schoo l Board of Pinellas County Policy (Policy ) 4140

provides in part, as follows:

Support staff may be dismissed for cause.

* * *

All Board employees shall cooperate fully

with appropriate authorities who are

conducting investigations into employee

cond uct.

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 work performance or

conduct. Progressive discipl ine 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

seri ous 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 pay 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 fin al 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,

aggravating or mitigating circumstances will

be considered. The following offenses are

subject to the penalties described below:

PENALTY

VIOLATIONS OFFENSE RANGE

A.9 Incompetence as evidence Reprimand -

by inability or lack of - Dismissal

fitness to discharge the

required duty

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

duties of the position Dismissal

A.19. Failure to correct Conference

performance deficiencies Summary -

Dismissal

A.20. Insubordination, which Caution --

is defined as a Dismissal

continuing or

intentional failure to

obey a direct order

reasonable in n ature,

and given by and with

proper authority

A.22 . Misconduct or Misconduct Caution --

in Office Dismissal

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. T he threat posed to the health, safety or

welfare of students, co - workers, or members

of the publi c;

2. T he severity of the offense;

3. D egree of student involvement;

4. T he disciplinary history of the employee,

including the number of offenses, the length

of time between offenses as well as the

similarity of offenses;

5. T he actual damage, phy sical or otherwise,

caused by the misconduct;

6. A ny effort of rehabilitation by the

employee;

7. A ttempts by the employee to correct or

stop the misconduct;

8. P ecuniary benefit or self - gain to the

employee realized by the misconduct;

9. I mpact of offense on students,

co - workers, or members of the public;

10. L ength of employment;

11. W hether the misconduct was motivated by

unlawful discrimination;

12. E mployee ' s evaluations; [and]

13. A ny other relevant mitigating or

aggravating factors[.]

2 6 . Ms . Ivey was charged with violating Polic y 4140. She

did not cooperate with the investigation regarding her medical

clearance or the February 4 th incident. Ms. Ivey did not timely

complete the " DRIVER ' S REPORT OF INCIDENT " and she refused to

answ er questions regarding the incident. Petitioner satisfied

its burden and proved by a preponderance of the evidence that

Ms. Ivey ' s conduct violated Policy 4140.

27. Ms . Ivey was charged with violating Polic ies 4140 A.9

and 4140 A9a. The School Bus Dri ver Handbook (Handbook)

enumerates, among other things, the duties of a school bus

driver.

28. Section 2.02 (Duties of the Driver) of the Handbook

provides, in part, as follows:

* * *

H. Drivers will immediately report any

hazards on the bus route or at bus stops

which might offer an actual or potential

threat to the safety of transported students

to the Dispatch Office for their assigned

compound and to their assigned Field

Operations Supervisor.

* * *

K. Loading and unloading of students fr om

the school bus is an especially critical

period of time for safety awareness.

1 . Drivers will always follow established

procedures for loading and unloading of

student passengers as set forth in the

Department of Education ' s Basic Driver

Training Curr iculum.

2 . Drivers will always directly supervise

the loading and unloading of all student

passengers. Drivers will be on their buses

at all times while students are loading or

unloading at schools. Drivers will supervise

the activities of students leav ing the bus

until they have crossed the road safely, and

will permit students to leave the bus only at

their assigned stop.

* * *

Y. Drivers will complete, accurately and to

the best of their knowledge and ability, all

required reports. Drivers wil l comply with

established deadlines for completing and

submitting required reports. [ 6/ ]

Z. Drivers will report all accidents/crashes

and incidents at the time of occurrence while

they are driving a school bus to the Dispatch

office no matter how minor an d regardless of

damage. An incident/crash is defined as any

time a school bus comes in contact with

another vehicle or object, regardless of

damage. If the incident/crash occurs after

normal working hours or at any other time

when the Dispatch Office is closed, the

driver will immediately notify Pinellas

County Schools Police.

29. On February 4, Ms. Ivey failed to activate her amber or

red lights when stopping the school bus at the corner location,

she failed to stop at the corner location school bus s top, and

she failed to report the incident " at the time of occurrence "

electing to drive to the restaurant and then radio the

possibility of an incident. Petitioner satisfied its burden and

proved by a preponderance of the evidence that

Ms. Ivey ' s conduc t violated Policies 4140 A.9 and 4140 A9a.

30. Ms . Ivey was charged with violating Polic y 4140 A.19.

On six occasions prior to these two incidents, Ms. Ivey was

disciplined for violating Policy 4140. Petitioner satisfied its

burden and proved by a prep onderance of the evidence that

Ms. Ivey ' s conduct violated Policy 4140 A.19.

31. Ms . Ivey was charged with violating Polic y 4140 A.20.

Ms. Ivey was repeatedly directed to submit her report of the

February 4 th incident. The handbook requires the report to be

completed and turned in by the end of the day of the incident,

yet Ms. Ivey failed to turn in the report for one week. Further,

Ms. Ivey was directed to attend meetings to discuss the two

incidents. Although she arrived at each meeting, she failed to

participate in any meaningful manner in any of them. Petitioner

satisfied its burden and proved by a preponderance of the

evidence that Ms. Ivey ' s conduct violated Polic y 4140 A.20.

3 2 . Ms . Ivey was charged with violating Polic y 4140 A.22.

Ms. Ivey unilaterally and without authority changed the scheduled

bus stop route, she failed to actually stop at a bus stop

(despite the fact she was late in arriving at its location), she

failed to stop the bus when she saw a student falling down, she

failed to i mmediately contact the transportation dispatcher at

the location where the student fell down, she failed to establish

and maintain radio contact with the transportation dispatcher

following the incident, she failed to immediately complete the

incident repo rt, and she failed to cooperate in the

investigation . Petitioner satisfied its burden and proved by a

preponderance of the evidence that Ms. Ivey ' s conduct violated

Polic y 4140 A.22.

3 3 . Ms . Ivey was charged with violating Polic y 4140 A.24.

Petitioner proved by a preponderance of the evidence that

Ms. Ivey ' s conduct violated various sections of Policy 4140. In

accordance with Article 23 of the Collective Bargaining

Agreement, Ms. Ivey was afforded the opportunity to be heard.

3 4 . When determining t he appropriate disciplinary sanction

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

consideration of certain aggravating and mitigating factors.

3 5 . As a result of Ms. Ivey ' s conduct, there was a

substantial threat posed to the health, safety, and welfare of

not only the student who fell down , but also of all the students

who rode the school bus that Ms. Ivey drove on January 24, 2013,

when she was under a medical restriction.

3 6 . Having considered all of the factors set forth in

Polic y 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 that:

Petitioner te rminate Ms. Ivey ' s employment as a school bus

driver as a consequence of her repeated violation s of School

Board Policies 4140 A.9, A.9a., A.19., A.20., A.22., and A.24.

The violation of any one of these subsections, standing alone, is

sufficiently severe so as to warrant Ms. Ivey ' s termination from

employment as a school bus driver.

DONE AND ENTERED this 20th day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Div ision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of Aug ust , 2013 .

ENDNOTE S

1/ Petitioner ' s Exhibit 11 contained private medical information

and was admitted under seal to maintain patient confidentiality.

2/ Respondent objected to Petitioner ' s Exhibits 3 through 8 and

10 through 13.

3/ Ms. McClendon is an ESE associate who rides the school bus

with a student who needs special assistance. The bus route is

designed so that Ms. McClendon is on the school bus before that

student is picked up.

4/ The supervisors requested a " chase " school bus be utilize d to

pick up the students and transport them to the middle school.

5/ Unless otherwise noted, all references to the Florida Statutes

are to the 2012.

6 / Readers are to " Refer to Section 12, page 41 for a listing of

forms. " Therein, the Driver ' s Report of Incident is listed for

use to " report situations affecting the safety of the bus or the

safety and well - being of the driver, student passengers, or other

persons on board the bus. "

COPIES FURNISHED:

Laurie A. Dart, Esquire

Pinellas County Schools

30 1 4th Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Belinda Ivey

3612 Tifton Street , North

St. Petersburg, Florida 33713

Dr. Tony Bennett, Commissioner

Department of Education

Turlington Building, Suite 1514

Tallahassee, Florida 323 99 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

Tallahassee, Florida 32399 - 0400

Dr. Michael A. Grego, Superintendent

Pinellas County School Board

301 4th Street Southwest

Largo, Florida 33770 - 2942

NOTIC E 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 th is case.