14-003685 Lee County School Board vs. Clesha Stevenson Status: Closed Recommended Order on Monday, December 29, 2014.

Summary: Petitioner proved misconduct in office in which Respondent had a profane tirade against fellow co-workers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 3685

CLESHA STEVENSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 30, 2014, Thomas Porter Cra pps, a duly - designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH), conducted a final hearing in Fort Myers,

Florida .

APPEARANCES

For Petitioner: Robert Dodig , Jr. , Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman, P.A.

P ost O ffice Box 2089

Fort Myers, Florida 33902

STA TEMENT OF THE ISSUE

Whether the Petitioner established just cause for the

termination of RespondentÓs employment as a school bus driver .

PRELIMINARY STATEMENT

On July 16, 2014, the Superintendent for the Lee County

School District (Superintendent) filed a Petition for Termination

of Employment (Petition) before the Petitioner, Lee County School

Board (School Board) , seeking the dismissal of Respondent, Clesha

Stevenson (Ms. Stevenson). The Petition charged Ms. Stevenson

with misconduct in office under se ction 1012.33, Florida Statutes

(2014) 1 / , as defined by Florida Administrative Code Rule 6A -

5.056(2), and violating School Board Polic i es 5.02, 4.09, 2.02,

and provision 7.13 of the collective bargaining agreement between

the School Board and the Support P ersonnel Association of Lee

County. Ms. Stevenson timely requested an administrative hearing

and the School Board transferred the Petition to DOAH on

August 13, 2014.

At the final hearing , t he School Board presented the

testimony of Andrew Brown, the S chool DistrictÓs director for

professional standards and equity; Karen Lane, a school bus

dispatcher; Luvenia Brown, a school bus dispatcher; Rita Thomas,

a support specialist in transportation; Jennifer Rivero, a school

bus attendant; Melissa Allen, a sch ool bus driver; Niurka Diaz, a

school bus driver; Tammy Black, a school bus driver; and Beatrice

Aney, an assistant supervisor of transportation. The School

Board offered into evidence PetitionerÓs Exhibits numbered 1

through 10 and 12 through 16. Ms. St evenson presented the

testimony of herself, and Tomika Harris, another school bus

driver. Ms. Stevenson offered into evidence RespondentÓs

Exhibits numbered 1 through 9.

A two - volume Transcript was filed with DOAH on November 18,

2014. Respondent filed h er Proposed Recommended Order on

November 25, 2014, and Petitioner filed its Proposed Recommended

Order on December 1, 2014 .

FINDING S OF FACT

1. The School Board is the state entity designated to

operate, control, and maintain the public school system. T he

School BoardÓs power includes the authority to enter into labor

contracts and to terminate educational support personnel.

2. Ms. Stevenson began working for the School District in

2003 as a school bus assistant, and eventually became a school

bus driv er in August 2004.

3. A review of Ms. StevensonÓs performance assessments show

that she was a good employee for the time period leading up to

the incidents that are the subject of this hearing. For example,

Ms. StevensonÓs Performance Assessment conduct ed for the

July 1, 2012 , through June 30, 2013, states that:

Ms. Stevenson shows great leadership and pays

great attention to detail. She shows respect

towards her students, her school and her

fellow employees. Ms. Stevenson is always in

uniform and sho ws great professionalism both

on and off the clock. Ms. Stevenson is very

passionate about her work and takes great

pride in doing a great job. It is a pleasure

and honor working with Ms. Stevenson.

4. The incidents that are subject of this final heari ng

occurred during the following school year for 2013 - 2014.

5. On April 25, 2014, Ms. Stevenson was driving her school

bus route, returning the students to their homes. Shortly after

beginning the bus route, Ms. Stevenson began to feel sharp pains

in her chest. Ms. Stevenson made her first bus stop, and then

radioed the School DistrictÓs bus dispatch for help. She had

stopped the bus in a safe location and was told to wait for

Emergency Management Services (EMS) paramedics.

6. Ms. Beatrice Aney, a n a ssistant supervisor at the School

DistrictÓs Leonard Transportation Compound (bus depot), was

notified about Ms. StevensonÓs call. EMS was contacted, and the

School District sent another bus to finish the route, and Ms.

Aney to assist.

7. The p a ramedics arrived at the scene and began to evaluate

Ms. StevensonÓs condition. Near that same time, Ms. Aney arrived

and boarded the school bus in order to watch the children, as the

paramedics helped Ms. Stevenson.

8. The p aramedics determined that M s. Stevenson needed to

be transported to the local hospital for further evaluation.

Ms. Stevenson was reluctant to leave the bus in the ambulance,

and expressed her concern about being able to retrieve her car

keys and pick her child up from daycare on t ime. Ms. Stevenson

believed that the paramedics had spoken with Ms. Aney, and that

Ms. Aney had promised that Ms. Stevenson would be picked up from

the hospital. In the confusion of the bus, Ms. Aney did not hear

or make any promise to Ms. Stevenson abou t transporting

Ms. Stevenson from the hospital.

9. At approximately 3:45 p.m., Ms. Stevenson was admitted

into the hospital. She was diagnosed as having a panic attack,

and was administered Xanex for anxiety. According to the

hospital record and Ms. Ste vensonÓs testimony, she was released

from the hospital at approximately 5:15 p.m.

10. After Ms. Stevenson was transported to the hospital,

Ms. Aney returned to the bus depot. Another school bus had been

dispatched and finished Ms. StevensonÓs school bus route.

11. Following her discharge from the hospital,

Ms. Stevenson called the bus depot seeking a ride from the

hospital back to the depot. Ms. Luvenia Brown answered the

phone.

12. The bus dispatch office was described as a busy place,

and Ms. A ney was working with the many different driver requests.

At the time Ms. Stevenson called, Ms. Aney was sitting across

from Ms. Brown, who answered the phone. Ms. Brown, holding the

phone receiver with Ms. Stevenson on the line, asked Ms. Aney

about tran sporting Ms. Stevenson from the hospital. Ms. Aney

stated that she did not have anyone who could pick up

Ms. Stevenson at that moment. Ms. Stevenson overhearing the

conversation between Ms. Brown and Ms. Aney stated Ðf**k it, she

would walk,Ñ and then h ung up. Unfortunately, in Ms. StevensonÓs

anger, she did not speak with either Ms. Aney or Ms. Brown before

hanging up the phone. Had Ms. Stevenson waited a moment, she

would have learned that Ms. Aney was going to drive to the

hospital to pick up Ms. St evenson. Ms. AneyÓs statement that she

did not have anyone who could transport Ms. Stevenson related to

the fact that she did not have an available driver.

13. Ms. Stevenson left the hospital angry, and began

walking what would have been approximately a six - mile trip from

the hospital. As she was walking, Ms. Stevenson was seen by

Ms. Niurka Diaz, a fellow school bus driver who recognized

Ms. Stevenson. Ms. Diaz had heard about Ms. StevensonÓs illness

on the bus radio, and had already completed her sc hool bus route.

Ms. Diaz stopped her bus, and offered Ms. Stevenson a ride. At

this point, Ms. Stevenson had walked approximately four - tenths of

a mile from the hospital.

14. While Ms. Stevenson was en route to the bus depot,

Ms. Aney had left for the hospital in order to transport

Ms. Stevenson.

15. Ms. Stevenson arrived at the school bus depot angry,

and she walked into the dispatch office. Upon entering the

office, Ms. Stevenson began a prolonged, profane tirade stating,

in essence, that her co - workers did not care what happened to

her, and then threatening Ðwhere the f**k is Beatrice? I am

going to beat her a**.Ñ During Ms. StevensonÓs outburst, she

grabbed at papers on the wall and crumpled them. Within a few

minutes, Ms. Stevenson exited th e di spatch office and then

entered the bus driver lounge. She continued to yell profanities

in the hallway and doorway of the bus driver lounge. One of the

drivers, Ms. Tomeika Harris, Ms. StevensonÓs friend, attempted to

find out what was wrong. Ms. Ha rris reached for

Ms. StevensonÓs arm. The video and testimony show that

Ms. Stevenson flailed her right arm upward in order to throw off

Ms. HarrisÓ hand. Consequently, when Ms. HarrisÓ hand was thrown

off Ms. StevensonÓs arm, Ms. HarrisÓ cell phone wa s damaged. At

the time Ms. Stevenson reacted, she was so angry that she did not

recognize that it was Ms. Harris, her friend, who had reached to

touch her. Subsequently, Ms. Stevenson learned that she had

damaged Ms. HarrisÓ cell phone , and has since rep laced it .

16. Ms. Stevenson exited the bus driver lounge into the

parking lot. Ms. Black, another school bus driver and friend of

Ms. Stevenson, saw her in the parking lot. Ms. Stevenson

continued a profane tirade that no one cared about her, and h ow

she had been left at the hospital. Ms. Black attempted to calm

her friend down, and Ms. Stevenson subsequently left the bus

depot in order to pick up her daughter from daycare.

17. During Ms. StevensonÓs outburst, Ms. Aney was at the

hospital looking for Ms. Stevenson. When she could not find

Ms. Stevenson, Ms. Aney called the dispatch office and spoke with

Ms. Karen Lane. Ms. Lane told Ms. Aney that Ms. Stevenson was at

the bus depot and that Ms. Aney needed to return immediately. By

the time that Ms. Aney returned, approximately 15 to 20 minutes

later, Ms. Stevenson had already left the premises.

18. The School District did not contact any law enforcement

agency concerning Ms. StevensonÓs outburst and threats made

against Ms. Aney on April 25, 2014.

19. The School District began an investigation into

Ms. StevensonÓs conduct at the school bus depot. The

investigator, Mr. Andrew Brown, learned from one of

Ms. StevensonÓs supervisors that Ms. Stevenson had been involved

in a prior incident on January 30, 2014.

20. Mr. Brown was provided a video taken on the bus driven

by Ms. Stevenson on January 30, 2014. This January 30, 2014,

video, with its audio, shows Ms. Stevenson losing her temper and

verbally berating a third - grader because Ms. Steve nson perceived

that the third - grader had been disrespectful to her. Further,

the video shows Ms. Stevenson yelling at all of the students and

warning them about being disrespectful to her.

21. Following her verbal tirade, Ms. Stevenson turned down

the bus radio and called the school bus dispatch on her cell

phone while driving the bus. Ms. Stevenson falsely reported that

she had tried to call the dispatch on her bus radio, and that she

wanted dispatch to inform the school that the identified student

h ad been disrespectful to her and that she would be speaking to

the studentÓs mother.

22. Finally, the video shows that at the studentÓs stop,

Ms. Stevenson informed the studentÓs mother that the child had

been disrespectful, rolling her eyes and had Ðjum ped at her.Ñ

The video did not support Ms. StevensonÓs characterization of the

third - graderÓs actions as Ðjump[ing] at her.Ñ

23. After a parent complaint, the School District reviewed

the video and suspended Ms. Stevenson as a school bus driver for

thr ee days. Ms. StevensonÓs evaluation indicated that

Ms. Stevenson was suspended for using the cell phone while

driving. Ms. Stevenson testified that her suspension also was

the result of her behavior on the bus in addition to the cell

phone use. Certain ly, the School District in suspending

Ms. Stevenson took into account her inexcusable verbal berating

of a third grader on the bus when it suspended her. The fact

that Ms. Stevenson used a cell phone while driving the school bus

could only have been lear ned by watching the video. As stated

earlier, the video shows Ms. StevensonÓs inappropriate behavior

directed to the student, and her inappropriate driving while

talking on the cell phone. Consequently, the undersigned finds

that the School District was aware of Ms. StevensonÓs outburst on

the school bus on January 30, 2014, when it suspended her for

three days. Finally, it is agreed by the parties that Ms.

Stevenson was directed by her supervisor, after the January 30,

2014, incident , to act courteous ly and cooperatively in the

future.

24. Ms. StevensonÓs unrebutted testimony shows that in 2013

and 2014 she was a victim of domestic violence, and had in place

a domestic violence injunction against her husband.

Ms. Stevenson explained that her difficu lt situation spilled over

into her work life causing her anger and anxiety. Prior to her

suspension, Ms. Stevenson sought help with Employee Assistance

Program counseling concerning her anxiety. However, she has not

been able to consistently continue wit h the counseling based on

financial difficulties.

25. During this past school year, Ms. Stevenson has driven

a bus for a private transportation company that provides bus

services for charter schools without any further incident. She

has expressed remor se for her actions, and stated a desire to

return as a Lee County School District school bus driver.

CONCLUSIONS OF LAW

26 . DOAH has subject matter jurisdiction over the parties

and dispute in the instant case. §§ 120.569, 120.57(1), and

1012.40(2)(c), Florida Statutes.

27. The School Board is responsible for the operation,

control and supervision of the free public schools in Lee County,

Florida. Art. IX, § 4(b), Fla. Const. ; and § 1001.32, Fla. Stat.

The School BoardÓs authority extends to personnel matters

including the power to suspend or dismiss an employee.

§§ 1001.42(5)(a) and 1012.27, Fla. Stat.

28. The School Board has the burden of proving by a

preponderance of the evidence the allegations underlying the

proposed disciplinary action. Mc Neill v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996).

29. As a school bus driver, Ms. Stevenson is an

"educational support employee," as defined by

section 1012.40(1(a). Consequently, Ms. StevensonÓs employment

is governed by the Collecti ve Bargaining Agreement (SPLAC

Contract) between the School Board and the Support Personnel

Association of Lee County.

30. The SPLAC Contract recognizes that Ðdismissal is the

extreme disciplinary penalty, since the employeeÓs job seniority,

other cont ractual benefits, and reputation are at stake.Ñ

Art. 7.10, SPLAC Contract 2013 - 2014. Further, the SPLAC contract

requires Ðthat in all instances the degree of discipline shall be

reasonably related to the seriousness of the offence and the

employeeÓs re cord.Ñ Id. The standard set out in the SPLAC

Contract for disciplining an educational support personnel is

Ðjust cause.Ñ Id. ; See also § 1012.40(2)(b), Fla. Stat.

31. The term Ðjust cause" is not defined in the SPLAC

Contract. However, in the past, the School Board has used the

statutory definition of Ðjust causeÑ found in

section 1012.33, Florida Statutes. See Lee Cnty. Sch. Bd. v.

Lomonte , Case No. 11 - 0001 (DOAH Feb. 10, 2011 ; Lee Cnty. Sch. Bd.

March 8, 2011); Lee Cnty. Sch. Bd. v. Simmons , Case No. 03 - 1498

(DOAH July 15, 2003 ; Lee Cnty. Sch. Bd. August 12, 2003); Lee

Cnty. Sch. Bd. v. Kehn , Case No. 04 - 1912 (DOAH Feb. 12, 2005 ; Lee

Cnty. Sch. Bd. March 10, 2005).

32. The statutory definition states, in pertinent part,

that, Ð[j]ust cause inclu des, but is not limited to, the

following instances, as defined by rule of the State Board of

Education: . . . misconduct in office[.]Ñ In turn, the State

Board of Education has defined Ð[m]isconduct in office,Ñ in part,

as a Ðviolation of the adopted sc hool board rules.Ñ Fla. Admin.

Code R. 6A - 5.056(2)(c).

33. Turning to the instant case, the School Board charged

Ms. Stevenson with Ðmisconduct in officeÑ for violating article

7.13 of the SPLAC, which concerns ÐWork Place Civility,Ñ as well

as violati ng School Board Policies concerning civility, threats

of violence, and professional standards.

34. ÐWork Place Civility,Ñ set out in article 7.13,

states, in part, that employees Ðshall not engage in speech,

conduct, behavior (verbal or non - verbal), or c ommit any act of

any type which is reasonably interpreted as abusive, profane,

intolerant, menacing, intimidating, threatening, or harassing

against any person in the workplace.Ñ

35. Similar to article 7.13 of SPLAC, School Board Policy

2.02, concerns c ivility and requires that school staff on all

District facilities shall treat Ðother school staff, and District

employees with courtesy and respect.Ñ Policy 2.02(1)(b), Lee

Cnty . Sch. Bd. Further, Policy 2.02 expressly identifies

Ðoffensive language, swe aring, cursing, using profane language,

or display of temper[,]Ñ as an unacceptable behavior. Policy

2.02(1)(b), Lee Cnty . Sch. Bd.

36. Next, School Board Policy 4.09, which addresses

ÐThreats of ViolenceÑ sets out the School DistrictÓs Ðޯ zeroÓ

tolerance policy for threats of violence.Ñ Further, the policy

states that Ð[a]ny serious threat of violence shall result in

immediate disciplinary action and referral to the appropriate law

enforcement agency.Ñ Finally, School Board Policy 5.02 requires

employee s to meet the high ethical standards, and comply with

policies concerning employment.

37. The School Board clearly established Ðjust causeÑ to

discipline Ms. Stevenson because the facts clearly show that

Ms. Stevenson violated article 7.13, and School Board

Policies 2.02, 4.09, and 5.02. It is not disputed that

Ms. StevensonÓs profane, angry outburst was offensive and

demonstrated a lack of civility. Furthermore, the undersigned

finds that Ms. Stevenson violated the School BoardÓs zero

tolerance pol icy by threatening to harm Ms. Aney. While not

diminishing the seriousness of Ms. StevensonÓs threats against

Ms. Aney, the undersigned notes that the School District did not

contact law enforcement, as required by its Policy for Ðserious

threats.Ñ Final ly, as for the allegation that Ms. Stevenson

knocked a cell phone from a fellow employeeÓs hand, the facts

showed that Ms. StevensonÓs action was an unintended consequence

of her throwing her arm in an upward motion. It is noteworthy

that Ms. Stevenson mad e restitution to Ms. Harris for the damaged

cell phone.

38. The Superintendent alleges the facts from the

January 30, 2014, incident involving the student on the bus, but

does not reference the incident as basis for termination in the

charges. Rather, the undersignedÓs reading of the Petition shows

that the undisputed January 30, 2014, incident is offered as part

of Ms. StevensonÓs prior disciplinary history in deciding whether

or not to recommend terminating her employment, not as additional

charges su pporting a Ðmisconduct in officeÑ charge.

39 . As shown earlier, article 7.10 of SPLAC provides, in

part, that Ð[a]ny discipline applied by the site based

administrator pursuant to this provision shall be, when

appropriate, progressive in nature.Ñ The Sch ool Board Policy

5.26 sets out managerial discipline guideline for transportation

employees. Specifically, Policy 5.26 indicates that for the

behavior of Ðverbal abuse,Ñ such as profanity or vulgar language ,

that the following recommended penalties: firs t offense, written

reprimand; second offense, three - day suspension without pay; and ,

third offense, termination. School Board Policy 5.26 recognizes

that the Ð[s]everity of the offense may result in moving to a

higher level of discipline.Ñ

40 . Turning now to the recommended penalty, the undersigned

finds that it is not appropriate to terminate Ms. StevensonÓs

employment. At the onset, the undersigned recognizes the

seriousness of Ms. StevensonÓs conduct on January 30 and

April 25, 2014, and especially the threats against Ms. Aney as

supporting a decision to terminate the employment. However, the

unique facts here support a lengthy suspension and counseling,

not termination. Article 7.10 expressly directs that any

discipline consider the employeeÓs re cord. Here, it is

undisputed that in the ten years before 2014, Ms. Stevenson was a

good employee. Her evaluation from the year before shows that

Ms. Stevenson was praised for her professionalism. The

unrebutted evidence from Ms. Stevenson showed that i n 2013 and

2014 she was the victim of domestic violence. This violence had

resulted in an injunction against her husband. As Ms. Stevenson

compellingly testified, her personal life spilled over into her

work. These facts put into perspective the stress, anxiety and

pressure that Ms. Stevenson was under when she

uncharacteristically acted on both January 30 and April 25, 2014.

To Ms. StevensonÓs credit, she began seeking counseling through

the School DistrictÓs Employee Assistance program to help her

man age the anger and stress. Unfortunately, with her suspension,

Ms. Stevenson has been unable to afford the continued counseling

services.

41 . Because Ms. StevensonÓs past employment evaluations

show that she was a good employee for over 10 years and t he

terrible toll that domestic violence can have on a victim, the

undersigned finds that the two incidents in 2014 are an

aberration of her character. Consequently, the undersigned does

not recommend termination, but a lesser discipline.

RECOMMENDATION

Ba sed on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that:

1. The School Board established Ðjust causeÑ for

disciplining Ms. StevensonÓs employment based on the finding that

she is guilty of Ðmisconduct in office,Ñ for violating article

7.13, and School Board Policies 2.02, 4.09, and 5.02;

2. Ms. Stevenson be suspended without pay from July 1, 2014

until the beginning of the January 2015 term; and

3. A s a condition of continued employment, Ms. Stevenson

successfully complete an Employee Assistance Program concerning

anger and stress management, and successfully complete training

concerning effective communication.

DONE AND ENTERED this 29 th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of December , 2014 .

ENDNOTE

1/ All references to Florida Statutes shall be the 2014 version.

COPIES FURNISHED:

Robert J. Coleman, Esquire

Coleman and Coleman , P.A.

Post Office Box 2089

Fort Myers, Fl orida 33902

(eServed)

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

(eServed)

Dr. Nancy J. Graham, Superintendent

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 3 3966 - 8300

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Lois S. Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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 Or der should be filed with the agency that

will issue the Final Order in this case.