14-001080 Lee County School Board vs. Christel Freeman Status: Closed Recommended Order on Friday, June 27, 2014.

Summary: School board proved just cause to suspend or terminate bus driver for battering another driver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 1080

CHRISTEL FREEMAN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 15, 2014, a final administrativ e hearing in this case

was held in Fort Myers, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Bou levard

Fort Myers, Florida 33966 - 1012

For Respondent: Christel Freeman, pro se

2119 French Street

Fort Myers, Florida 33916 - 4434

STATEMENT OF THE ISSUE

The issue in this case is whether the School Board of Lee

County (School Board) should termi nate the Respondent, Christel

Freeman, for fighting with another school bus employee on School

Board property.

PRELIMINARY STATEMENT

After an incident on December 4, 2013, an investigation was

conducted, and the School Board decided to terminate the

Respon dentÓs employment. The Respondent requested a hearing, and

the matter was referred to the Division of Administrative

Hearings.

At the hearing on May 15, the Petitioner called eight

witnesses, and Exhibits 1 and 3 through 10 were received in

evidence. T he Respondent called two witnesses and testified in

her own behalf . A Transcript of the final hearing was filed on

June 4, and the Petitioner filed a Proposed Recommended Order,

which has been considered. The Respondent did not file a

proposed recommende d order.

FINDING S OF FACT

1. The Respondent, Christel Freeman, has been a school bus

driver employed by the School Board since 2002. There was no

evidence that she was anything other than an exemplary employee

until an incident that occurred at the Schoo l BoardÓs Leonard

Street bus compound at the end of the work day. She and her

boyfriend, Mike Ortes, were driving their personal vehicle from

the back of the compound to the front, where the employees clock

out and usually visit for a while before going h ome, when she

spotted another employee, Ashley Thomas, who had just recently

been transferred to Leonard Street.

2. The Respondent approached Thomas, who was visiting with

co - workers at a picnic table, because she suspected that Thomas

was having sexual relations with her boyfriend and wanted to tell

Thomas to stay away from her boyfriend, stop interfering with the

RespondentÓs family unit, and stop Ðtalking trash about her.Ñ

3. When she got within earshot, the Respondent asked Thomas

if they could talk in private. Thomas said, yes, and the two

walked away from the co - workers at the picnic table. The

Respondent began to tell Thomas what she wanted to talk about,

and the conversation soon became heated.

4. After they left the view of the co - workers a t the picnic

table, they passed another co - worker who was sitting in a vehicle

and who said something to Thomas. As Thomas turned to respond to

the speaker, the Respondent struck Thomas with her hand or fist

on the side of the face, near the eye. Thomas was carrying her

car keys, cell phone, and purse and was surprised by the blow.

When t he Respondent followed up with another blow, Thomas began

to defend herself by hitting back. The nearby co - workers very

quickly ran to the combatants to separate them. In the process,

the combatants fell down, with the Respondent landing on top.

The scuffling continued for a brief time until the combatants

were separated. By this time, ThomasÓs shirt had been torn open

at the front buttons, her face was bruised and sw elling, and her

eye was hurt. The Respondent also had an eye injury from being

hit with ThomasÓs car keys.

5. The police were called, but the Respondent left the

scene with her boyfriend by the time the police arrived. After

some leading questions by the Respondent, Ortes supported her

testimony that they went to the hospital for emergency treatment

for her eye and, once there, called the police, who responded to

the hospital.

6 . After discussing the incident with the police, neither

woman pressed c harges.

7. The RespondentÓs primary defense is that after she

called Thomas a Ðnasty bitch,Ñ Thomas struck her first with the

car keys, and the Respondent defended herself. However, the

other witnesses to the incident saw it the other way around, with

the Respondent hitting first without provocation. The Respondent

attempted to undermine that testimony by saying those witnesses

were family and friends of Thomas. To the contrary, the evidence

was that the family and friends of Thomas were not the

eyewi tnesses who testified; rather, ThomasÓ s family and friends

either did not testify or testified that they were not

eyewitnesses to the incident.

8 . While the Respondent attempted to downplay the state of

her emotions at the time of the incident, it is cl ear from the

evidence that she was angry at Thomas and initiated the

conversation in that state of mind. It is possible that what

triggered the RespondentÓs violence was Thomas saying the

Respondent should ask her boyfriend for the answers to her

question s, which the Respondent took as flaunting an admission

that they were having sexual relations.

9 . According to the RespondentÓs testimony, her job with

the School Board is very important to her and her family.

Notwithstanding that she has not admitted instigating the fight

with Thomas and throwing the first blow, she understands that the

consequences of engaging in similar conduct again would certainly

be the permanent loss of her job. For that reason, it is

unlikely that she would put herself in that position in the

future.

10. There is a collective bargaining agreement between the

School Board and the Support Personnel Association of Lee County

(SPALC) that governs the RespondentÓs employment. The procedure

followed in the RespondentÓs case is set out in sections 7.10 and

7.103 of the SPALC agreement.

11. Section 7.10 of the SPALC agreement provides:

The parties agree that dismissal is the

extreme disciplinary penalty, since the

employeeÓs job seniority, other contractual

benefits, and reputatio n are at stake. In

recognition of this principle, it is agreed

that disciplinary actions(s) taken against

SPALC bargaining unit members shall be

consistent with the concept and practice of

the collective bargaining agreement and that

in all instances the degree of discipline

shall be reasonably related to the

seriousness of the offense and the employeeÓs

record. Any discipline during the contract

year, that constitutes a verbal warning,

letter of warning, letter of reprimand,

suspension, demotion or termi nation shall be

for just cause.

12. Section 7.10 also states that employee misconduct is a

ground for suspension without pay or termination of employment.

The SPALC agreement does not define misconduct.

1 3. T he School Board has policies that govern em ployee

conduct. Policy 4.09 adopts a Ðzero toleranceÑ policy for

threats of violence. It prohibits Ðany verbal, written or

electronically communicated threat, suggestion or prediction of

violence against any person.Ñ Id. ÐAny serious threat of

violence shall result in immediate disciplinary action and

referral to the appropriate law enforcement agency.Ñ Id.

1 4. S chool Board Policy 5.29(1) states: ÐAll employees

are expected to exemplify conduct that is lawful and

professional . . . .Ñ

1 5. School Boa rd Policy 2.02(2) describes and prohibits

Ðunacceptable/disruptive behavior.Ñ This includes Ð[u]sing

unreasonable loud and/or offensive language, swearing, cursing,

using profane language, or display of temper.Ñ Id. at ¶ (b).

It also includes Ð[t]hreate ning to do bodily or physical harm to

a . . . school employee . . . regardless of whether or not the

behavior constitutes a criminal violation.Ñ Id. at ¶ (c). It

also includes Ð[a]ny other behavior which disrupts the orderly

operation of a school, school classroom, or any other School

District facility.Ñ Id. at ¶ (e).

1 6. S ection 7.103 of the SPALC agreement allows an employee

being terminated to either file a grievance under A rticle 5 or

request a hearing before the School Board, but not both.

1 7 . Sec tion 7.13 of the SPALC agreement provides that

employees Ðshall not engage in speech, conduct, behavior (verbal

or nonverbal), or commit any act of any type which is reasonably

interpreted as abusive, profane, intolerant, menacing,

intimidating, threatenin g, or harassing against any person in the

workplace.Ñ

CONCLUSIONS OF LAW

1 8 . This proceeding is governed by section 1012.40(2),

Florida Statutes (2013). That statute provides that termination

must be for reasons stated in the collective bargaining (in thi s

case, the SPALC) agreement and that the appeals process is

determined by the appropriate collective bargaining (in this

case, SPALC) agreement.

1 9 . Under section 7.10 of the SPALC agreement, discipline

against the Respondent must be for Ðjust cause , Ñ a nd employee

misconduct is a ground for suspension without pay or termination

of employment.

20 . The SPALC agreement does not define employee

misconduct, but School Board p olicies 2.02, 4.09, and 5.29

describe prohibited and unacceptable employee behavior that

reasonably should be interpreted as employee misconduct.

21 . The School Board also has construed Ðjust causeÑ for

purposes of discipline pursuant to the SPALC agreement in the

same manner as in section 1012.33, Florida Statutes (2013) ,

relating to instructional staff. Under that statute, just cause

includes Ðmisconduct in office,Ñ which Florida Administrative

Code Rule 6A - 5.056(2)(c) defines to include a violation of

Ðadopted school board rules.Ñ The School BoardÓs adopted

policies are its adopted rules. Sch. Bd. Pol. 1.08.

22 . ÐJust causeÑ and Ðemployee misconductÑ must be proven

by a preponderance of the evidence. See McNeill v. Pinellas

Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996). In this case,

the School Board proved employee miscond uct that violated

section 7.13 of the SPALC agreement, as well as School Board

policies 2.02, 4.09, and 5.29, and is just cause for suspension

without pay and termination of employment.

2 3 . The SPALC agreement provides that Ðthe degree of

discipline shal l be reasonably related to the seriousness of the

offense and the employeeÓs record.Ñ In this case, the offense is

serious, and the employeeÓs record exemplary. Balancing the two ,

and taking into account the RespondentÓs strong desire to keep

her job and recognition that another similar incident would

certainly result in termination, suspension without pay clearly

is an appropriate discipline. Termination of employment is not

unreasonable, if that is the School BoardÓs choice, but the

School Board may wi sh to consider reinstating the Respondent .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

finding the Respondent guilty of employee misconduct and either

terminatin g her employment, or suspending her without pay and

reinstating her upon entry of the f inal o rder.

DONE AND ENTERED this 27th day of June , 2014 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27 th day of June , 2014 .

COPIES FURNISHED:

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Buildi ng, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Nancy J. Graham

Superintendent of Lee County Schools

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Christel Freeman

2119 French Street

Fort Myers, Florida 33916 - 4434

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.