17-001357 Hernando County School Board vs. Mildred Rodgers Status: Closed Recommended Order on Thursday, November 30, 2017.

Summary: Petitioner proved by a preponderence of evidence that it had just cause to terminate Respondent's employment as a bus driver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 1357

MILDRED RODGERS ,

Respondent.

_______________________________/

RE COMMENDED ORDER

On October 5, 2017, a hearing was conducted pursuant to

sections 120.569 and 120.57(1), F lorida Statutes, before

Yolonda Y. Green, an Administrative Law Judge of the Division of

Administrative H earings (ÐDOAHÑ), in Brooksville , Florida.

APPEARANCES

For Petitioner: Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

For Respondent: Mark Herdman, Esquire

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent

from employment as a bus driver , a non - instructional position .

PRELIMINARY STATEMENT

By letter dated Januar y 3, 2017, Lori Romano, Ph.D.,

superintendent of s chools, Hernando County School District ,

issued a Notice letter to R espondent (ÐRespondentÑ or

ÐMs. RodgersÑ), notifying her that the Superintendent intended

to recommend to the Hernando County School Board (ÐPetitionerÑ

or Ð School Board Ñ) that her employment as a bus driver be

terminated. The Notice alleged that Respondent engaged in

misconduct in the scope of her employment. Specifically, the

Noti ce alleged Respondent violated the School Board - approved

Safe Driver P lan by b eing assigned 10 points in a 12 - month

period. The Notice further alleged that Respondent violated

School Board p olicy 6.37(5)(d) , by committing a Group III

offense . On January 18, 2017, Petitioner received RespondentÓs

timely request for an appeal hearing to dispute PetitionerÓs

intended action. On March 2, 2017, this matter was referred to

DOAH for assignment of an administrative law judge to conduct an

evidentiary hearing in this matter.

On March 22, 2017, the undersigned issued a Notice of

Hearing scheduling this matter for May 10, 2017. After several

motions for continuance, the final hearing was rescheduled for

October 5, 2017.

The hearing commenced as scheduled on October 5, 2017, with

both parties represented by counsel. Petitioner presen ted the

testimony of four witnesses: William Hall, m anager of fire,

safety, and s ecurity; Matthew Goldrick, supervisor of

professio nal standards; Joseph Handzus, c hairman of the Safe

Driver Committee Review Board (ÐReview BoardÑ) ; and Karen

Sartin, safety and training s peci alist. PetitionerÓs Exhibits

1 through 3, 5, 6, 11, 12, 14, and 19 through 21 were admitted

into evidence. Respondent did not testify and did not present

any witn esses. RespondentÓs Exhibits 1 through 3 and

5 through 9 were admitted into evidence.

A one - volume Transcript of the hearing was filed on

October 23, 2017. The parties timely filed Proposed Recommended

Orders, which have been considered in preparat ion of this

Recommended Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (2016 ), unless otherwise noted.

FINDING S OF FACT

Background

1. The School Board is the duly authorized entity

responsible for the operation, control, and supervision of all

public schools (grades k indergarten through 12) in Hernando

County, Florida, and for otherwise provi ding public education to

school - aged children in the county. § 4(b), Art. IX, Fla.

Const.

2. At all times material to this proceeding, Respondent

was employed by Petitioner as a bus driver , a position she held

for approximately 16 years . Bus drivers are considered

educational support or non - instructional employees.

3 . T he School Board has adopted a Safe Driver Plan t hat

applies to all bus drivers. All bus drivers receive a copy of

the Safe Driver Plan annually , and are required to sign the

Safe Driver Acknowledgement Form indicating that he/she has

reviewed and understands the plan.

4 . The Safe Driver Plan specifically provides guidelines

for assignment of point s based on alleged driving - related

incident s and maximum number of points that may be assigned for

each violation . A recommendation for disciplinary action is

based on the number of points assigned during a 12 - month time

per iod. Under the Safe Driver P lan, the recommendation for

disciplinary action for the designated points within a 12 - month

peri od is as follows: 1 - 4 p oin ts, a documented warning; 5 -

6 points , a one - day suspension without pay; 7 - 9 points , three

days Ó suspension without pay; and 10 points , recommendation for

termination.

5 . Pursuant to the Safe Driver P lan, the Review B oard

Ðassesses points for any violation or incident/crash from

0 through 10 following the approved point system outlined in the

plan.Ñ Specifically, the Review Board , made up of five members ,

as designated by the Safe Driver Plan, is responsible for

reviewing driver incidents, determining whether the incidents

were preventable or unpreventable, listening to any evidence

provided by the driver regarding the incidents, an d assessing

points pursuant to the Safe Driver Plan. The Review Board does

not have discretion regarding the recommendation made to the

driverÓs site administrator.

6 . Regarding assignment of points, the Safe Driver P lan

provides in relevant part:

If co urt action is required to determine

fault in an incident/crash, and the

assignment of points would be five (5)

points or less, the driver shall not be

assigned points until court action is taken.

Effective date of points assigned shall be

the date of the v iolation .

* * *

If a driver is assigned points, he/she will

be informed of the assignment of points by

the Safe Driver Review Board in writing.

The driver may then accept the point

assignment or he/she may appeal the

assignment of points to the Coordinator of

Safety and Security.

7 . When points are assessed by the Review Board, the

driver who is the recipient of the points has an opportunity to

appeal the decision . T he Safe Driver Plan includes an appeal

process which provides, in relevant pa rt, the following:

The driver must inform his/her supervisor in

writing of their decision to appeal within

five working days of notification of

assigned points. The request shall state

the driverÓs objections to the assignment of

points in detail. Th e supervisor shall then

forward the request for appeal to the

Coordinator of Safety and Security.

A driver who chooses to appeal the

assignment of points will be given a copy of

all accident information for their review by

the investigator prior to the date of the

meeting. This will give the driver the

opportunity to review all information that

will be presented at the hearing and prepare

for the hearing in order to rebut any of the

information that will be presented. It will

also give the driver the o pportunity to

present testimony and information to the

Coordinator of Safety and Security or to

offer an explanation of mitigating

circumstances prior to points being upheld.

After the Safe Driver Review BoardÓs final

recommendation of administrative acti on is

made and any driverÓs appeal is heard, all

disciplinary action taken by the driverÓs

supervisor must follow the School Board

approved disciplinary policy.

8 . For purposes of this matter, the driver appeals the

assignment of points to William Hall, the manager of fire,

safety, and s ecurity. Mr. Hall testified that he reviews all of

the information submitted by the driver, and if there is

additional evidence or mitigating circumstances that were not

before the Review Board , he would meet with the driver for a

hearing. If there is no new evidence or mitigating

circumstances, Mr. Hall then unilaterally determine s t he appeal

based on the documents .

9 . After a driver has exhausted the appeal process, a

driver , who is facing a potent ial suspension or termination

based on the accumulation of points , may appeal the

coordinatorÓs decision by using the School BoardÓs approved

complaint process. For purposes of this matter, that appeal

goes to the supervisor of professional s tandards, Matthew

Goldrick, who serves as the designee for the s uperintendent and

handles the driverÓs predetermination meetings. At the

predetermination hearing, the driver is given an opportunity to

present any information that she wants prior to any de cision

being made for a s uspension or termination. The s uperintendent

then decides whether to proceed with a recommendation for

discipline.

10 . The School Board has adopted p olicy 6.37, which

establishes standards for the separation, discipline, and

disc harge of non - instructional employees, including Respondent.

Paragraph (5)(d) recognizes three categories of offenses and a

guide for recommended penalties. Relevant to this proceeding

are the offenses and recommended penalties for Group III. The

penalty for Group III offenses carry a recommended penalty of

" up to discharge " for the first violation.

11 . The School Board has charged Respondent wit h

violating the Safe Driver P lan by accumulating 10 points within

a 12 - month period , which results in a recommendation of

termination . Respondent was also charged with a vio lation of a

Group III offense , namely a ccumulating disciplinary actions, no

one of which standing alone would warrant discharge. The

accumulation of points resulted from four driving violations,

which are discussed further below.

Driving Violations

12 . O n Tuesday, December 8, 2015, Respondent was issued a

traffic citation for careless d riving while operating her bus.

Respondent did not immediately report t he citation as required

by the Safe Driver P lan .

13 . On January 6, 2016 , the Review B oard review ed

Respondent Ós December 8, 2015 , incident. The Review B oard

assessed Respondent with a violation for Ð[f]ailure to report an

in cident/crash or citation, no matter how minor, while operating

a School Board vehicle immediately during regular working hours

and as soon as reasonably possible after working hours,Ñ a

Category 3 violation. The Review B oard determined the incid ent

was preventable and assigned Respondent 10 points.

14 . Respondent appeal ed the Review BoardÓs assignment of

10 points for the December 8, 2015 , incident . On January 21,

2016 , a Safe D river Appeals Meeting was held before Mr. Hall.

As a result of the appeal, RespondentÓs assigned points were

reduce d to four points.

15 . On April 25, 2016 , Respondent was involved in an

accident while operating her bus. The Review B oard met and

assigned Respondent the maximum of two points for improper

backing, a C ategory 25 violation of the Safe Driver Plan. The

assessmen t brought Respondent up to six points in a 12 - month

period. Respondent did not appeal this assessment of points.

16 . On May 23, 2016 , Respondent was issued a citation for

running a red traffic light signal. O n September 14, 2016 , the

Review B oard reviewed Respondent Ós alle ged violation from

May 23, 2016 , at which time the Review Board listened to

Respondent Ós evidence and rev iewed the available video. The

Review Board determined that t he video reflected that Respondent

failed to obey the red light traffic signal, a C ategory 13

vi olation of the Safe Driver Plan . While s uch a violation could

result in a maximum of four point s under the Safe Driver P lan,

the Review B oard assigned Respondent two points for the

violation . The Review BoardÓs assignment of points placed

Respondent at an accumulated eight points for the past

12 - months.

17 . Mr. Handzus and Mr. Goldrick credibly testified that

court action was not necessary to determ ine fault because the

video clear ly depicted Respondent failing to obey the red light .

18 . On September 14, 2016 , Respondent wrote a letter to

Mr. Hall seeki ng to appeal the assessment of two points for

failure to obe y the red light traffic signal. In the appeal

letter, Respondent indicated her objection to the assessment in

detail by stating that she ran the red light, because she Ðhad

almost n o choice but to go through it.Ñ Mr. Hall denied her

request for an appeal. 1/

19 . Respondent was brought in for a predetermination

hearing as part of the di sciplinary process because her eight

points in a 12 - month period woul d result in a three - day

suspension. After the predetermination hearing, and listening

to Respondent Ós arguments, the recommendation was made to

suspend Respondent for three days without pay. Respondent did

not appeal the disciplinary action resulting in the three - day

suspension . 2 /

20 . On October 26, 2016 , after having been reinstated from

her suspension, Respondent was involved in an incident on Deer

Run Road where she backed her school bus into a mailbox. O n

November 7, 2016, the Review Board assigned Respondent the

maximum two points for improper backing, a C ategory 25 violation

of the Safe Driver Plan. This was RespondentÓs second violation

for improper backing.

21 . On November 7, 2016 , Respondent timely sent a letter

to Mr. Hall timely requesting an appeal of the assessment of two

points for the October 26, 2016 , incident. In the letter,

Respondent explained in detail her objection to the assessment

of the point s by stating that on Ð[t]he morning of 10/26/2016 at

5:30am . . . I hit a mailboxÑ and that Ð[w]hile backing up [she]

hit the mailbox.Ñ Mr. Hall reviewed the appeal letter and

denied the req uest for appeal.

22. Mr. Hall testified that he denied the request for

appeal because there was no information in the letter that would

mitigate Respondent Ós conduct and there was an admission

regarding the violation. However, Mr. HallÓs actions were a

di rect contradiction to the appeal process as expressly written

in the Safe Driver Plan .

23. The Safe Driver Plan does not provide Mr. Hall the

authority to unilaterally deny a driverÓs Ð request for an

appeal Ñ or exercise discretion in granting or deny ing an appeal.

Ms. Rodgers was entitled to an appeal so long as she made that

request in writing within five days of notif ication of the

assigned points. Respondent complied with that requirement.

The appeal process also provides that Respondent would b e

entitled t o a copy of all information for review prior to the

date of the meeting to prepare for hearing and given an

opportunity to present testimony and mitigation before the

points are upheld. Mr. Hall testified that he considered the

comments in RespondentÓs letter as mitigation. However, under

the Safe Driver Plan appeal process , mitigating evidence would

be offered at the hearing, not in the notice of appeal letter.

Further, the driver checklist in items 7 through 9 restates the

procedure as outlined in the appeal process. Simply put, the

appeal request letter is only required to include d etails

regarding any objection, nothing more.

24. Mr. Hall did not properly comply with the appeal

process in the Safe Driver Plan as written . Purs uant to the

Safe Driver Plan, Ð[c] hanges to the plan may not be impleme nted

without Board approval.Ñ There was no evidence offered at

hearing that the written Safe Driver Plan had been changed.

25 . Mr. Hall improp erly denied RespondentÓs request for an

appeal and , thus, improperly upheld the Review BoardÓs de cision

to assess the two points for the October 26, 2016 , violation .

26 . Based on the alleged accumulation of 10 poin ts within

a 12 - month period, Respondent appeared for a predetermination

meeting regarding the recommendation for termination of

employment . At the predetermination meeting , Respondent was

provided the opportunity to offer any mitigating circumstances

to the recommendation for termination. The recommendation for

termination included the assessment of the two points for the

October 26, 2016 , incident. Mr. Goldrick consi dered

RespondentÓs arguments and determined that there were n o

mitigating circumstances that would warrant discipline short of

termination. The record does not include evidence regarding the

mitigation considered by Mr. Goldrick.

27 . Following the predetermination meeting, on January 3,

2017, the School DistrictÓs superintendent notified Respondent

by letter of the recommendation to terminate Responde ntÓs

employment for misconduct. Respondent timely disputed the

allegations in the Notice and requested a hearing to appeal the

recommendation of termination.

28 . By letter dated January 20, 2017, Respondent was

notified that the recommendation to the School Board would be

modified to one of suspension witho ut pay, effective January 25,

2017 , and referral of her appeal to the Division of

Administrative Hearings. At the January 24, 2017 , m eeting of

the School Board, the School Board authorized that this case be

referred to the Division of Administrative Hearings, whereupon

this case ensued.

29. The evidence at hearing demonstrates that Mr. Hall

improperly denied RespondentÓs request for an appeal of the

October 26, 2016, violation. However, given the procedural

posture of this case the undersigned has considered whether the

Review Board appropriately assigned the two points for the

October 26, 2016 , incident.

30. T he undersigned finds evidence of mitigation in the

record . The record demonstrates that on October 26, 2016,

Respondent had been driving a new , unfamiliar route for

approximately two days before the incident. Respondent stated

in her request for appeal letter that it was Ðpitch - black

outsideÑ and her ability to turn was impeded by an oncoming

vehicle using its high beam lights . After c onsidering the above

mitigating factors, t he undersigned finds that the evidence in

the reco rd does not warrant a deviation from the Review BoardÓs

assignment of the standard two point s for the October 26, 2016 ,

improper backing violation.

31 . The evidence supports that the assignment of two

points against Respondent for the October 26, 2016, incident was

appropriate. The mitigation did not warrant reduction of the

points assessed. As a result, the record correctly demonstrates

that Respondent accumulated 10 points .

32 . Petitioner demonstrate d by a prepo nderance of evidence

that there is just cause to te rminate RespondentÓs employment.

CONCLUSIONS OF LAW

3 3 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to sections 120.569 and 1 20.57(1),

and 1012 .40 (2)(c), Florida Statutes (2017 ).

34 . Section 1012.22(1) provides, in part, that a district

school board shall Ð[d]esignate positions to be filled,

prescribe qualifications for those positions, and provide for

the appointment, compensation, promotion, suspension, and

dismissal of employees . . . , subject to the requirements of

[chapter 1012].Ñ

35 . Bus drivers are educational support employees, as

defined by Florida Statutes. § 1012.40, Fla. Stat . A bus

driver is a member of the support staff, and may be terminated

from employment for the " reasons stated . . . in [a] district

school board rule. " § 1012.40(2)(b), Fla. Stat .

36 . Here, the School Board has adopted policy 6.37, which

establishes the grounds upon which a school bus driver may be

terminated .

37 . Respondent is an employee of Petitioner pursuant to

the authority of section 1012.33.

38 . Petitioner seeks to terminate Respondent's employment,

which does not involve the loss of a license or certification.

Thus, Petitioner has the burden o f proving the allegations in

its notice of recommendation of termination by a preponderance

of the evide nce. Cropsey v. Sch. Bd. of Manatee Cnty. , 19 So.

3d 351, 355 (Fla. 2d DCA 2009); Cisneros v. Sch. Bd. of Dade

Cnty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008); McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996);

Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d

DCA 1990); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla.

3d DCA 1990).

39 . The preponderance of the evidence standard Ðis defined

as Òthe greater weight of the evidence,Ó Black's Law Di ctionary

1201 (7th ed. 1999), or evidence that Òmore likely than notÓ

tends to prove a certain proposition.Ñ Gross v. Lyons , 763 So.

2d 276, 289 n.1 (Fla. 2000). See also Haines v. DepÓt of Child.

& Fams. , 983 So. 2d 602, 606 (Fla. 5th DCA 2008).

40 . Ba sed on the Safe Driver Plan and School Board rules,

the School Board met its burden of showing just cause to

terminate RespondentÓs employment.

41 . It is undisputed that Respondent had accumulated eight

points before the October 26, 2016 , incident. It is undisputed

that Respondent struck a mailbox while backing the bus she was

driving. It is also undisputed that Respondent violated the

Safe Driver Plan by improperly backing her bus. While the

evidence at hearing reflects there were mitigating circu mstances

regarding the October 26, 2016 incident, they were not

sufficient to reduce the two points assessed for the violation.

Thus, Respondent had an accumulated 10 points for driving -

related incidents.

42 . Therefore, the undersigned finds that the School Board

prove d by the preponderance of evidence that just cause exists

to terminate RespondentÓs employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Hernando County Sc hool

Bo ard, enter a final order terminating the employment of Mildred

Rodgers as a bus driver.

DONE AND ENTERED this 30th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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

t his 30th day of November , 2017 .

ENDNOTE S

1/ Mr. Hall testified that he considered the video feed,

Respondent Ós admission of guilt in her letter to running the

red light, and the fact that the Review Board only assessed

Respondent two points rather than the full four points for the

infraction, to support his denial of the appeal.

2/ The i ssue regarding whether Respondent was entitled to an

appeal for the May 23, 2016 , incident is not before the

undersigned. The time to dispute that i ssue would have been at

the pre determination proceeding on October 3, 2016 , or through

appeal of the disciplinary action imposed on October 17, 2016.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Branden M. Vicari, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761

(eServed)

Dennis J. Alfonso, Esquire

McClain, Alfonso, Nathe & DiCamplia, P.A.

Post Office Box 4

Dade City, Florida 33526

(eServed)

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa, Florida 33602

(eServed)

Lori M. Romano, Ph.D.

Superintendent of Schools

School Dist rict of Hernando County

919 North Broad Street

Brooksville, Florida 34601 - 2397

Matthew Mears, 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 Order should be filed with the agency that

will issue the Final Order in this case.