16-006385 Palm Beach County School Board vs. Jose Lopez Status: Closed Recommended Order on Thursday, March 16, 2017.

Summary: Petitioner failed to prove that Respondent's scuffle with a student constitutes just cause for dismissing Respondent from his position as a bus driver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 6385

JOSE LOPEZ,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

January 9 , 2017, at sites in Tallahassee and West Palm Beach ,

Florida.

APPEARANCES

For Petitioner: Helene Kalvin Baxter , Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416

For Respondent: Dedrick D. Straghn , Esquire

Dedrick D. Straghn Attorney

& Counselor a t Law

26 Southwest 5th Avenue

Delray Beach , Florida 3344 4

STATEMENT OF THE ISSU ES

The issues in this case are whether , as the district school

board alleges, Respondent got into a scuffle with a student ;

and, if so, whether such conduct constitutes just cause for

Petitioner's dismissing Respondent from his position as a bus

driver .

PRELIMINARY STATEMENT

At its regular meeting on October 19 , 201 6 , Petitioner Palm

Beach County School Board voted to approve the superintendent's

recommendation that Respondent José Lopez be terminated from his

employment as a school bus driver . The reasons for t his action

had been spelled out in a n Amended Notice of Recommendation for

Termination of Employment dated October 10 , 201 6 . In th at

charging document, Mr. Lopez i s accused of having engaged in a

physical altercation with a student on March 9 , 201 6 .

M r . Lopez timely requested a formal administrative hearing

to contest Petitioner's intended action. Shortly thereafter,

Petitioner forwarded the matter to the Division of

Administrative Hearings, which opened a file on October 31 ,

201 6 .

At the final hearing, which took place on January 9, 2017,

Petitioner called the following witnesses: Mr. Lo pez, Pamela

Ambrose, Dr. Demetrius Permenter, Michael Clark, Dr. Elvis Epps,

and Sue Gorby. Petitioner's Exhibits 1, 3A, 3B, 7, 8, 12, 13,

14, 17, 19, 20, 24, 25A, 25B, 26, and 27 were admitted into

evidence.

Respondent testified on his own behalf and d id not offer

any exhibits .

T he final hearing transcript , comprising three volumes, was

filed on February 21 , 201 7 . Each party timely filed a Proposed

Recommended Order on March 3 , 201 7 , the deadline established at

the conclusion of the hearing .

Unless otherwise indicated, citations to the official

statute law of the s tate of Florida refer to Florida Statutes

201 6 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Palm Beach County School Board ("School Board" or

"District" ), Petitioner in this case, is the constitutional

entity authorized to operate, control, and supervise the Palm

Beach County Public School System.

2. At all relevant times and as of the final hearing, the

District employed Respondent José Lopez (" Lopez ") as a bus

driver, a position he has held since 2008.

3. The events in dispute occurred on the afternoon of

March 9 , 201 6 . At the time, Lopez was working as a "spare

driver," meaning that, instead of being assigned to a regular

route, he drove to different locations as needed . This

particular afternoon, the dispatcher directed Lopez to make a

late pickup at Forest Hill Community High School ("Forest Hill")

in West Palm Beach because the regular driver's bus had broken

down . Lopez had some trepida tion about accepting this

assignment because he was familiar with the route in question

and considered it dangerous due to the behavior of the students.

Nevertheless, he proceeded to Forest Hill as instructed.

4. The bus was behind schedule when Lopez ar rived at the

school , through no fault of his. The other busses already had

pulled away, and the students waiting for Lopez's bus were

s tanding in the road (or "bus loop" as it is called). As the

bus pulled up, some students began running beside it, creating a

potentially dangerous situation. The administrator on bus duty,

Dr. Demetrius Permenter, ordered Lopez to drive around the loop

again, so that he could get the students out of the road and

under control. Lopez complied.

5. On his second appro ach, Lopez parked the bus and opened

the side - entry double door s, which are located at the front of

the bus, opposite the driver (to his right when driving ) . The

students jostled and pushed each other as they rushed to board

the bus. Again fearing that s omeone might get hurt,

Dr. Permenter told the students to stop boarding and ÏÏ to prevent

others from entering ÏÏ ins tructed Lopez to close the door s .

Lopez complied. As the door s closed, students continued to dash

in , disobeying Dr. Permenter . The last student to board the bus

was Michael Clark, then 17 years old.

6. Although he had bolted in side the bus at the last

second , Michael could not proceed to a seat because his arm (or

the arm of his jacket) got caught between the doors as they

shut , trappin g him at the bottom of the interior steps .

Fortunately, Michael was not hurt, which was obvious to everyone

around, for he began to laugh at the somewhat comical position

he had placed himself in. Others, including Dr. Permenter,

chuckled too, and Lopez raised his hands, palms forward, in a n

exaggerated gesture of mock exasperation , before opening the

doors , freeing Michael. All told, the student was stuck for

about five seconds .

7. To this point, the atmosphere had been one of energetic

merriment. The students had been exc ited, boisterous, and

generally in high spirits . But suddenly, the mood changed. A s

Michael climbed the steps onto the bus, he angrily demanded to

know why his arm had been stuck "in the damn door so fucking

long. "

8. Dr. Per menter clearly heard this disrespectful outburst

and knew immediately that " some[thing] was going on. " Tr. 96 .

Lopez thought, "Something is coming. I don't wanna do it."

Tr. 335. At hearing, Dr. Permenter testified that Michael's

statement could have be en perceived as aggressive, Tr. 108 , but

he did not view it th at way at the time, perhaps, in part,

because he could n o t see Michael's face . Tr. 132 .

9. Lopez rose from his seat . Although Michael's

belligerent query had not been o vertly threatening, it carried

an unmistakable whiff of menace ÏÏ enough , clearly, to put a

reasonable person on guard. Sitting behind the wheel placed

Lopez in a vulnerable position vis - à - vis Michael . Therefore,

r ising to his feet sensibly increased Lopez's options for fight

or flight , should it come to that, and reduced the risk that he

would be set upon by an attacker looming over him , raining down

blows . In sum, b ecause Michael had addressed Lopez , not as an

authority figure, but (at best) as a peer and possibly as prey ,

Lopez's decision to stand was reasonable under the

circumstances .

10. Lopez , who had stood up next to the right edge of the

driver's seat, turned to his right to face Michael, who was

drawing near, and asked, "What's your problem , man ?" In the

blink of an eye, the two began to tussle. The question at the

heart of this dispute is: W ho initiated th e physical

altercation? The District alleges that Lopez panicked and

lashed out at a student merely for using foul language . 1 / Lopez

claims t hat he acted reasonably in self - defense after Michael

attacked him.

11. Accounts of the next few relevant moments differ

sharply , which is par for the course. What is w orse, from the

fact - finder's pers pective, is the thinness of the evidence. The

two protagonists were the only witnesses at hearing having

personal knowledge of all the relevant facts , and both were

relatively ina rticulate ; they each gave testimony that was

n either precise n or explicit. The other eyewitness,

Dr. Permenter, de scri bed the events with admirable precision, as

far as his testimony went, but he did not see everything and

could not say whether Lopez or Michael had been the aggressor.

12. Then there are the two surveillance videos ("3A" and

"3B"), which together amount to a virtual witness who

"testifies" through the sound and images recorded by the cameras

mounted on the bus. Yet, w hile the video e v idence is both

captivating and seemingly unbiased , i t is a mistake t o assume

casually that the assertive narrative of a ny given video is

objective and unambiguous , for rarely is that true , if ever .

Viewers of filmic evidence , including the undersigned, do not

somehow become eyewitnesses to past events , for video merely

represents, imperfectly, the real event s captured on ca mera . Of

necessity, each member of the audience project s onto the images

his or her own interpretation of the scenes depicted. As the

fact - finder, the undersigned must determine the significance,

meaning, and story of the images preserved in videos 3A and 3B

based upon a critical review of the films in conjunction with a

careful consideration of all the available evidence.

13. Michael testified that after Lopez stood up, he

(Lopez) reached for Michael's neck, which initiated the tussle.

Video 3A pe rsuasively rebuts Michael's testimony in this regard.

Lopez clearly did not reach for Michael's neck ÏÏ not right away,

anyway . Unfortunately for purposes of this case, however,

video 3A does not persuasively describe the entire event , as a

result of the s tatic position of the camera .

14. Video 3A was shot by a camera mounted at the front of

the bus, over the driver's left shoulder ( as he faces forward) .

The angle of the shot give s the viewer the perspective of

looking down, from the left side of the bus, on to the front

inside area of the vehicle, which encompasses the driver 's seat

(closest to the camera); the landing at the head of the center

aisle, onto which passengers step afte r ascending the front

steps inside the vehicle ; the first few rows of passenger seats;

and the side - entry double doors located to the driver's right .

The disputed event took place largely within sight of this

c amera .

15. A major drawback of video 3A is t hat when Lopez stood

up, his body got between the camera and Michael, giving us a

good shot of Lopez's back, but blocking our view of Michael .

Thus, we cannot observe which one made the first physical

contact.

16. Despite its limitations, v ideo 3A provides much useful

information . As mentioned, there is a landing at the head of

the center aisle, which is adjacent to the driver's seat . The

center aisle is bordered by silver edging trim ( also known as

transition strips) . The passenger seats and the driver's seat

are outside these strips. When Lopez stood and turned to face

Michael ( as Michael climbed the steps and approached) , t he

driver planted his feet mostly on "his" s ide of the edging trim;

only the toes of his shoes touch ed the landing. Next to his

right foot was a waste basket located on the driver's side of

the trim, near the driver's seat. Lopez's calves were quite

close to his seat. Simply put, when Lopez stood and faced

Michael, he occupied his work station . It was Michael who

walked a cross the landing and got into Lopez's face , while Lopez

was standing ÏÏ literally ÏÏ in his own personal space.

17. Facing each other, the two briefly exchanged words,

but the evidence is insufficient to permit the undersigned to

make a finding as to what w as said. During this short verbal

encounter, Lopez's arms remained at his side . Also, Lopez's

feet stayed on his side of the driver's area. It should be

understood that, at this moment , Lopez was basically standing

his ground , for he was effectively trapped . Unlike Michael, wh o

had the freedom to exit the bus or proceed down the aisle via

unobstructed paths , Lopez could not escape except by getting

past Michael. For Lopez, retreat meant fall ing back into his

driver's seat , which would have put him at a disadvantage .

18. V ideo 3A shows that, as the two talked, Lopez a brup tly

step ped sideways and back wards on his right foot , which bump ed

into the waste basket . Lopez appears to be reacting to

something, and has perhaps been knocked off balance, but

Michael's actions cannot be made out because Lopez's body is in

the way . After regaining his footing, Lopez reache d forward

with his right hand while leaning slightly to the right , as if

he were going to embrace Michael , and took a step forward with

his left foot, raising his left hand towards Michael's waist in

a motion that, again, looks like the start of a hug , except that

Michael's right arm would have been pinned against his body had

Lopez s ucceeded in getting his arm around the student .

19. Simultaneously, Michael slip ped his left hand under

Lopez's right arm and grab bed the driver's left shoulder, while

using his right hand to take hold of Lopez's left shirt collar.

Here , Michael clearly went on the offensive, driving Lopez

forceful ly back and pushing him into the driver's seat . Lopez

got back to his feet, and Michael slam med him hard into the

steering wheel and driver's seat. Lopez use d his arms in an

attempt to protec t himself, but Michael began to overpower the

driver .

20. At about this time, Dr. Permenter enter ed the bus, and

he reache d out immediately to restrain Michael. At the same

time, Lopez bounced up and manage d to push Michael back a step

or two , reachi ng unsuccessfully for his neck . At hearing,

Dr. Permenter recalled that Michael seemed to calm down and stop

struggling upon the administrator's arrival . Video 3A rebuts

this testimony. As it actually happened, Michael advanced on

Lopez and pushed the driver backwards, nearly into the steering

wheel, as Dr. Per menter tugged on Michael's arm to pull him away

from Lopez.

21. In response, Lopez lunged forward and reached again

with both hands for Michael's throat. The School Board uses a

screenshot from v ideo 3B capturing this moment that appears to

show Lopez choki ng or strangling Michael. But, th ough

arresting , this particular still is misleading because , whereas

the screenshot gives the impression that Lopez had locked his

hands arou nd the student's neck, the video shows that in real

time the driver's hands were actually in that visually dramatic

position for just a split second before releasing. I n truth, i f

Lopez even made contact with Michael's throat , it was an

extremely brief touch. Lopez , obviously agitated, exclaimed,

"Get out of here, motherfucker!"

22. Dr. Permenter stepped between Lopez and Michael, and

said, "Uh uh, let him go, let him go." Without hesitating,

Dr. Permenter th en th rew his body into Lopez, and knocked the

driver back into his seat , separating Lopez and Michael.

Michael was yelling at Lopez and Dr. Permenter, but his words ,

as recorded on the videos, cannot be understood . With that, t he

altercation was over. Shortly thereafter, Michael was escorted

o ff the bus.

23. The District alleges that it has just cause to fire

Lopez based up on the following allegations of material fact:

As [Michael] was entering the bus, Mr. Lopez

closed the bus doors, thereby trapping the

[student] in the doors.

* * *

[Later, d]uring the investigation . . . ,

Mr. Lopez stated that he accidently closed

the bus door on [Michael] .

In fact, Michael did become caught in the doors by accident ÏÏ an

accident for which he (Michael) , having disobediently boarded

the bus know ing that the doors were shutting, was 100% at fault .

L opez, who had closed the doors on Dr. Permenter's order , wa s

blameless in connection with this mishap.

After several seconds, Mr. Lopez opened the

door. As [Michael] walked up the steps of

the bus, [h e] questioned Respondent about

being caught in the doors.

In fact, Michael rudely barked, "Wh y was my arm stuck in the

damn door so fucking long ? " Michael was, of course, way out of

line in making this menacing remark to the driver , who

reasonably rose from his seat in a self - protective maneuver .

Respondent is seen [in v ideo 3A] stepping

towards the victim and using his body to

make contact with [Michael] .

In fact, Lopez clearly stood his ground near the driver's seat.

It was plainl y Michael who moved toward Lopez , not the other way

around. Lopez did make contact with Michael, but it is quite

possible that Michael made physical contact with Lopez first .

The evidence is ambiguous as to the question of whether Lopez or

Michael struck first.

Mr. Lopez and [Michael] engage [d] in a

physical tussle, until they [we] re separated

by a school staff member that boarded the

bus. Once separated, Mr. Lopez again lunged

at [Michael] and made physical contact with

the student, which caused a second scuffle.

A school staff member got between Respondent

and [Michael] and broke up the altercation.

Without a doubt, there was a tussle , but there was not, in fact,

a "second scuffle" for which Lopez was somehow primarily

responsible. The two combatants , in fact, were not actually

"separated" until Dr. Permenter threw himself into Lopez and

knocked the driver down. Until then, both individuals had

thrust and parried with their arms, hands, and legs . During the

struggle, Michael was as, if no t more, aggressive than Lopez ,

who was, very possibly , merely defending himself, as he

maintains .

During the incident, Mr. Lopez used

profanity.

Lopez admitted this allegation, which was proved, in any event,

by clear and convincing evidence, as he can be heard calling

Michael a "motherfucker" in the video. The context, however, is

crucial. The bad word or words were uttered by Lopez , not

grat uit ously, but in the heat of battle, when emotions were high

and Lopez was understandably and justifiably angry at Michael .

In contrast, Michael used profanity gratuitously in the absence

of conflict, without justification, when he boarded the bus ÏÏ far

worse conduct . 2 / Lopez's use of profanity, under the

circumstances, was a de minimis infraction , not just cause for

dismissal.

24. The upshot is that the District failed to prove by

clear and convincing evidence the essential allegation against

Lopez, namely that he had initiated and escalated a physical

altercation with a student. As far as establishing who the

aggressor was , the evidence is ambiguous. Although Lopez did

not have the burden to prove his innocence, he presented

evidence sufficient to raise the genuin e possibility that he had

acted in self - defense , not in retaliation, using reasonable

force to protect himself from harm while under attack . This

genuine possibility precludes the undersigned from forming a

firm belief or conviction, without hes itancy, that Lopez acted

in an unjustifiably aggressive or retaliatory fashion, as

charged.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 1012.40 (2) (c) , 120.569, and 120.57(1), Florida

Statutes.

26 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the allegations "need not be set forth with the technical nicety

or formal exactness required of pleadings in court," Jacker v.

School Board of Dade County , 426 So. 2d 1149, 1150 (Fla. 3d DCA

1983), the charging document should " specify the rule the agency

alleges has been violated and th e conduct which occasioned the

violation of the rule , " i d. a t 1151 (Jorgenson, J. concurring).

27 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

suspension or termination, those are the only grounds upon wh ich

such action may be taken . See Lusskin v. Ag . for Health Care

Admin . , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep ' t

of Ins . , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v.

Dep ' t of Bus . & Prof ' l Reg . , 625 So. 2d 1237, 123 8 - 39 (Fla. 2d

DCA 1993); Delk v. Dep ' t of Prof ' l Reg . , 595 So. 2d 966, 967

(Fla. 5th DCA 1992); Willner v. Dep ' t of Prof ' l Reg ., B d . of

Med . , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576

So. 2d 295 ( Fla. 1991).

28. In an administrative proceeding to suspend or dismiss

a n employee , the school board ordinarily bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense(s). See, e.g. , McNeill v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996). If the school

board has agreed, through collective bargaining, to a more

demanding standard, however, then it must act in accordance with

the applicable contract. See Chiles v. United Faculty of Fla. ,

615 So. 2d 671, 672 - 73 (Fla. 1993).

29. A rticle 17 , paragraph 1 , of the applicable Collective

Bargaining Agreement ("CBA") provides that "disciplinary action

may not be taken against an employee except for just cause, and

this must be substantiated by clear and convincing evidence

which supports the recommended disciplinary action." The School

Board's burden, accordingly, is to prove the facts al leged as

grounds for terminating Lopez's employment by clear and

convincing evidence at a hearing before the Division of

Administrative Hearings, if time ly requested . CBA Art. 17, ¶ 8.

30. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a defin ition would

need to contain "both qualitative and quantitative standards."

The court held as follows :

[C] lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly reme mbered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitanc y, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westin ghouse Elec tric

Corp. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991), rev. denied , 599 So. 2d 1279 (Fla. 1992)(citation

omitted).

31. The educational support employee 's guilt or innocence

is a question of ultimate fact to be decided in the context of

each alleged violation. Cf. McKinney v. Castor , 667 So. 2d 387,

389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489,

491 (Fla. 1st DCA 1995).

32. The District's basis for dismissing Lopez rests up on

the elemental factual allegation that , on March 9, 2016, Lopez

committed a ba ttery upon the student, Michael Clark. The

District , however, failed to prove this essential allegation by

the requisite measure of proof.

33. Thus, all of the charges against Lopez necessarily

fail, as a matter of fact. Due to this dispositive failure of

proof, it is not necessary to make additional conclusions of

law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Palm Bea ch County School Board

enter a final order exonerating Lopez of all charges brought

against him in this proceeding .

DONE AND ENTERED this 16th day of March , 201 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN L ANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 16th day of March , 20 1 7 .

ENDNOTES

1 / Evidently it has become commonplace in Palm Beach County

schools for students to curse and swear at teachers and other

school personnel.

2 / The undersigned is aware that the District has different

rules for students, whose abusive and profane language is to be

tolerated and overlooked as an unfortunate but unavoidable fact

of life, like bad weather. This does not change the fact that

the differe nce between Lopez's use of profanity here as compared

to Michael's is one of kind and not of degree.

COPIES FURNISHED :

Helene Kalvin Baxter, Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416

(eServed)

Dedrick D. Straghn, Esquire

Dedrick D. Straghn Attorney

& Counselor at Law

26 Southwest 5th Avenue

Delray Beach, Florida 33444

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 - 5869

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suit e 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 Order should be filed with the agency that

will issue the Final Order in this case.