Respondent testified in his own behalf, presented the testimony of seven witnesses, and submitted 16 exhibits. The parties submitted one joint exhibit.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the six-volume transcript of the hearing filed on June 21, 2000. On June 28 and July 18, the parties filed joint motions for extensions of time to file their proposed recommended orders ("PROs"). Petitioner and Respondent timely filed their respective PROs on July 31 and August 1,
2000.
Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995.
The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School.
Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18.
Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00
a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m.
Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed."
The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner.
Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school.
The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel.
Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters.
Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy.
The Allegations
On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey.
Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing.
Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum."
Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session.
Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at
that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school.
Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake.
On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother.
On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear.
On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day.
On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey
reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued.
The Hallway and Bus Ramp
Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching.
The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle.
Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10
occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching.
Lifting the Skirt
Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school.
Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m.
The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00
p.m. when Respondent left for his second job.
Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years
including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC.
Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously.
Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request.
Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job.
Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in.
Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by
Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record.
Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day.
Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time.
Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink.
The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students.
Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson.
Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999.
Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom.
Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer.
It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over.
Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees.
However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow.
Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave.
Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business.
According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis.
Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class.
Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk,
cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes.
Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely.
Procedural Deficiencies
Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher.
When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When
Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson.
Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal.
On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately.
Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives."
Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section
120.57(1), Florida Statutes (1999). The parties were duly noticed for the hearing.
Two pending matters should be are addressed before addressing the merits of the case. First, Petitioner's Motion for Reconsideration of Admissibility of Written and Transcribed Statements of Stephanie Day is denied for the reasons stated in Respondent's Memorandum of Law in Opposition to Petitioner's Motion for Reconsideration of Admissibility of Written and Transcribed Statements of Stephanie Day. Second, Petitioner's objection to testimony concerning prior similar allegations by Ms. Battle against another male teacher is sustained.
The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and responses to discovery. McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996); Allen vs. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo vs. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
Petitioner failed to satisfy its burden of proof. Petitioner failed to show that Respondent committed the acts for which he was charged.
The evidence submitted by Petitioner concerning the allegations by Ms. Battle was less than credible and persuasive. Other than the uncorroborated testimony of Ms. Battle, the testimony of Petitioner's other witnesses consisted primarily of
