STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 02-3461PL
)
PAUL MOCOMBE, )
)
Respondent. )
__________________________________)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, Florence Snyder Rivas, conducted a formal hearing in the above-styled case on January 22, 2003, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316-1924
For Respondent: Robert F. McKee, Esquire
Kelly & McKee
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
STATEMENT OF THE ISSUE
At issue is whether the Respondent committed the offenses set forth in the Administrative Complaint dated July 30, 2002, and if so, whether his employment should be terminated.
PRELIMINARY STATEMENT
By Administrative Complaint dated July 30, 2002, Petitioner (Petitioner or School Board) recommended the termination of employment of Respondent (Respondent or
Mocombe), alleging that he had committed misconduct in office, including acts of immorality and moral turpitude in his interactions with one student and two teachers during the
2000-2001 school year.
At the formal hearing, Petitioner presented the testimony of Tracey Bryant, Hudson Mortimer, Kim Barnes, Reginald Edwards, Arnetta Davis, Kathleen Stokes, Vicki Drane, Phillip Patton, and David Steele. Petitioner also offered five exhibits which were received into evidence without objection.
Respondent testified on his own behalf, and presented the testimony of Marrisa Cooper, Dena Defay, Abby Rose, and Sheri Harris.
A two-volume transcript was filed on January 29, 2003. The parties timely filed proposed recommended orders which have been carefully considered in the preparation of this Recommended Order.
Unless otherwise specified, throughout this Recommended Order all references to Sections are to Florida Statutes, and all references to Rules are to the Florida Administrative Code.
FINDINGS OF FACT
Mocombe has been employed by the School Board as a social studies teacher since 1997, when he graduated from Florida Atlantic University. He began his career substitute teaching at Sunrise Middle School (Sunrise), and later moved into a full-time position at Lauderhill Middle School (Lauderhill).
In the years following graduation, while working as a teacher, Mocombe continued his studies at Florida Atlantic University and attained a master's degree and a Ph.D. He also received three formal reprimands, and a reputation as a person who could engage in adolescent behavior toward peers and insubordinate behavior to his principal without suffering any meaningful consequence.
Mocombe calls himself a brilliant teacher, whose teaching philosophy is informed by his belief that "Revolution comes first. I'm a Marxist."
Also a high priority for Mocombe is hedonism. Mocombe is known at Lauderhill as a "player," a term defined by one witness as "[S]omeone who has a lot of women and a lot of women [who] know about each other," a characterization which Mocombe embraces.
Although married, Mocombe had a sexual relationship with a teaching colleague at Lauderhill by the name of Belinda Hope (Hope). He also was attracted to a first year teacher by the name of Kim Barnes (Barnes). Specifically, said he wanted to "get into her pants," during the 2000-2001 school year.
Mocombe has no sense of boundaries in the workplace. He freely offers his opinions on religion, politics, and sex,
some intended to be humorous, some not. Mocombe is aware of his need to be the center of attention and to shock people.
He testified, "Even in school, I used to go walking around and said I was God just to get a reaction out of people."
Most adults tread carefully, or not at all, around
such deeply personal subjects. The training and ethics of the teaching profession emphasize respect for the dignity and worth of each individual, irrespective of his political and religious beliefs, or lack thereof. Teachers are educated to understand that sophomoric jokes about sex are not to be inflicted upon unwilling listeners. These lessons are reemphasized annually in sexual harassment training provided to all teachers employed by the School Board.
Mocombe did not benefit from this training. He was known at Lauderhill for a constant stream of crude references to sex. He made no secret of his view that a woman's role is to have babies and serve men sexually.
In addition, Mocombe would mock organized religion in the presence of colleagues who take their faith seriously. He often spoke of starting his own church, in which he would be known as Prophet Paul and the prerequisite for all women seeking to join the church would be to have his baby. Such comments, as well as his propensity to refer to women as "bitches" and "whores," were deeply offensive to some, but they kept silent.
Lauderhill was an ideal environment for Mocombe.
The atmosphere at the school is sexually charged to an extent inappropriate to the serious business of teaching children who are at a fragile stage of their own sexual development.
Adolescent sexual banter consumes a great deal of time in and out of Lauderhill's teachers' lounge. At least in Mocombe's class, cursing and horseplay in the presence of the teacher--
even with the teacher--is acceptable. Unrebutted testimony placed an assistant principal in the main office discussing "sex, among other things," with Mocombe and other members of Lauderhill's staff in the main office at a time when at least one person not employed there could hear their discussion.
Phillip Patton (Patton) was Mocombe's principal, first at Sunrise and later at Lauderhill. Patton's patience with Mocombe's behavior was seemingly boundless.
In the lax atmosphere at Lauderhill, some of Mocombe's colleagues regarded his frequent references to sex, as well as to religion, politics, and the appearance of female colleagues, as harmless banter.
Others, such as Marrisa Cooper (Cooper) who testified on Mocombe's behalf, felt that it was not the school's responsibility to deal with harassment; rather, the person at whom the harassment was directed should have the "balls" to deal with it. Cooper explained that it was understood at Lauderhill that Mocombe [believed] "that women are there to have children, which everyone always disagrees with statements because he always makes these general statements about women, and a lot of people take them as being belittling or degrading women. I don't take it personal because you are not talking to me, I know what I am made of and the way I am, so I never take them personally. But
again, everybody maybe don't have the balls that I have."
Others at Lauderhill were offended by Mocombe's conduct, but kept their silence, believing that Patton would not impose meaningful discipline on him. In fact, Patton's patience with Mocombe ran out only when Barnes and another teacher, Tracey Bryant (Bryant) put their complaints in writing, at which time Patton was required by School Board policies and procedures to forward the complaints for follow-
up by trained investigators.
The charges at issue here arise out of Mocombe's interaction with three individuals, student Hudson Mortimer (Mortimer), and the above-mentioned teachers Bryant and Barnes.
Each situation is discussed separately in paragraphs 16 through 77, below.
Hudson Mortimer:
At the time of the incident alleged in the Administrative Complaint, Mortimer was a sixth grader at Lauderhill and a student of Mocombe's.
Mortimer shares Mocombe's high opinion of himself as a teacher. Although Mortimer testified at the behest of the School Board, he volunteered, "I don't think he should get his license suspended."
On October 11, 2001, Mocombe and Mortimer were "playing with each other." More particularly, Mortimer was "cracking" on his teacher, calling him "ugly and stuff."
Mortimer's and Mocombe's accounts of the incident are consistent, and create a picture of two kids on the same level, playing together when they should be working. The incident began with Mortimer and Mocombe trading good natured insults, which included adolescent name-calling, using phrases such as "ugly-ass," while tossing whatever object was at hand at one another. Eventually Mocombe tossed a marking pen at Mortimer which hit the student over one eye, causing minor injury.
The School Board contends that this incident
constitutes the imposition of inappropriate discipline of sufficient severity to warrant termination.
Pursuant to School Board rules and policies requiring that events which may give rise to litigation be documented,
Patton, through a staff member, sent an accident report form to Mocombe for him to fill out.
Mocombe refused, saying, "I'm not filling out anything, it was an accident. Patton wants to, he can fill it out himself."
Patton took no disciplinary action against Mocombe for his refusal to comply with this routine and entirely appropriate request that he follow a reasonable School Board policy.
This was not the first time, nor would it be the last, that Mocombe was given to understand that there would be no meaningful consequence to him for ignoring rules which he did not wish to follow.
Tracey Bryant:
Bryant is a 13-year teacher. Her complaint against Mocombe arises out of an incident which she characterizes as sexual harassment, and which occurred in the teachers' lounge at Lauderhill on April 5, 2001.
At the time of the incident, Bryant was one of about a half dozen teachers present in the lounge. While conversing with a colleague, she was interrupted by Mocombe who asked, "Ms. Bryant are you pregnant?" Stunned, she coldly told him,
"No."
Referring to Bryant and to another teacher then present, Mocombe commented to the effect that their "butts were getting to be alike---hanging." Bryant quickly left the room.
Here, as with the incident involving Mortimer, Mocombe and the alleged victim tell similar stories. Both agree that Mocombe was intending to be jocular in his interaction with them. But while Mocombe's alleged student victim supports the manner in which Mocombe interacts with him in general, and in particular is not offended by the allegedly inappropriate conduct set forth in the Administrative Complaint, Bryant felt "humiliated and disrespected" by Mocombe's comments about her size.
In addition, Bryant was aware of Mocombe's history of making what she viewed as inappropriate comments about and to females. She had heard him make numerous comments she regarded as inappropriate in the workplace to Hope, a good friend of hers with whom Mocombe would eventually have an acrimonious break-up.
When the offensive comment about Bryant's size was directed to her personally, she complained, in writing, to Patton.
The conflict between Bryant and Mocombe continued at the hearing. At one point, Mocombe snickered during legal argument being made by the School Board attorney while Bryant was on the witness stand.
Mocombe was provoked by a comment made to him by the School Board's attorney (who in turn was admonished to direct his comments to the tribunal, and not to parties or witnesses) and said of the School Board's charges against him, "I find it baffling and humorous, yes." Bryant immediately jumped in to
say, "That's how he is, yes. No remorse or nothing."
Bryant's reading of Mocombe's attitude is accurate.
During his testimony, Mocombe supplied details of the incident which were not presented in the School Board's case, and which reflect a lack of understanding of why his conduct was so offensive.
After having months to reflect on why Bryant brought these charges, Mocombe remains unembarrassed by his faux pas of assuming--and saying aloud to a roomful of colleagues--that Bryant's weight gain was due to pregnancy. He volunteered during his testimony that rather than drop the subject after Bryant made her displeasure clear, Mocombe persisted, discussing his exchange with Bryant about Bryant's weight with another colleague, Vicki Drane.
While not denying the substance of Bryant's account of the incident in the teachers' lounge, Mocombe argues that Bryant is out to get him because of his break-up with Hope. However, neither Mocombe nor any of his witnesses offered any type of corroboration in support of his assertion that Bryant and others conspired to avenge his spurned lover by getting him fired.
After carefully observing Bryant's demeanor under oath, and considering the entire record, the undersigned finds no evidence to suggest that Bryant's testimony was untruthful, or that her complaint was motivated by anything other than her own distress at Mocombe's callous behavior in calling attention to her weight gain, behavior which hurt and
embarrassed her in front of her colleagues.
Kim Barnes:
Barnes met Mocombe in the office at Lauderhill, where she was being interviewed for what would become her first teaching job.
As previously noted, the School Board provides annual training to its employees regarding sexual harassment and other types of conduct inappropriate in the workplace. But Barnes' first contact with Lauderhill employees in their main office, where the administrative staff, including the principal, have their offices, suggested an atmosphere inconsistent with what is to be expected in a well managed place of learning.
Mocombe acknowledges that he wanted to "impress" Barnes in order to "get into her pants." This is his account of his first meeting with Barnes in the school office:
The first -- the very first interaction I had with Ms. Barnes were the beginning of the last school year. We were in teacher planning. She came in for an interview and we were all in the student office discussing sex among other things.
Q. Who was we?
A. Ms. Cooper, Ms. Mayo, who was the office manager, the assistant principal at that time, Mr. King, myself, and Ms. Barnes. And I made the reference about I want six children. My actual reference was my goal is to have as many little Mocombes running around so I can start my own revolution, take over the world, my own Marxist revolution and indoctrinate them. And she made the reference that she wanted to have five children. I thought hey, we could work out if that's the case. (Transcript page 276, lines 2-19).
In hindsight, it was a mistake for Barnes to tell
Mocombe the number of children she might like to have. The above-mentioned defense witness, Cooper, was an office worker at Lauderhill and was present and participated in the discussion of "sex among other things."
Cooper, knowing of Mocombe's obsession with sex, deemed that Barnes, having joined the discussion to the extent of remarking that she would like to have five children, had granted consent for Mocombe to make sexual advances.
Barnes' account of the conversation is slightly different. She recalls telling Mocombe she might like to have five children in response to a direct question by him.
Perhaps she voluntarily "made the reference," as Mocombe recalls. This is the type of minor discrepancy to be expected from witnesses asked to recall the details of an event which took place months ago. What is important is that Mocombe did not then and does not now see why the comments which he freely admits making are utterly inappropriate to the time and place where he made them.
Although Cooper considers herself a friend of Mocombe, in giving testimony on his behalf, she volunteered that on the day of the Barnes' job interview, Cooper commented to Barnes that Mocombe was "no good." Counsel for Respondent did not suggest what issue this testimony goes to, but the testimony offered on Mocombe's behalf, taken together, suggests a belief by Mocombe and his friends that Barnes was on notice that as a "player," Mocombe was unable to relate to professional women in a professional way, and that he was not
expected to do so by his colleagues or supervisors.
Barnes was hired and began work at Lauderhill in the fall of the 2000-2001 school year. In the beginning, Mocombe confined his comments to Barnes to acknowledging her presence, usually in terms of her looks, such as, "Hi, sexy."
Over time, the comments became more graphic.
Mocombe would remark on the size of Barnes' breasts, her "phat (pretty hot
and tender) ass" and would state his desire to have sex with her in stunningly offensive terms.
In November 2000, Barnes expressed her distress about Mocombe's conduct to Reginald Edwards (Edwards), a substitute teacher who also works as a Baptist pastor.
Edwards reported Barnes' concerns to principal Patton. Patton did nothing to follow up.
Barnes also expressed her distress to her assigned teaching mentor, Arnetta Davis (Davis). Davis advised her that Mocombe was well known for this type of conduct, and recommended that she try to "nip it in the bud."
Barnes is not an aggressive personality, but she tried to make Mocombe understand that she did not appreciate his comments. Mocombe was not deterred.
Her efforts to nip Mocombe's conduct in the bud having failed, Barnes conferred again with Davis. Davis confirmed what Barnes had come to suspect: Mocombe conducted himself in this manner because he had been doing so for as long as he had been teaching, with no more than a wrist slap ever imposed.
Barnes came to hold a reasonable belief that, in Davis' words, "apparently everyone knew about it, [Mocombe's inappropriate behavior] it was just how he was, and everyone just basically looked a blind eye about it."
Davis could not provide Barnes with any assurance that if she complained to Patton, Mocombe would experience any meaningful consequence. Worse, Davis confirmed Barnes' fear that she, Barnes, might be deemed a troublemaker and be "blackballed" if she complained.
Barnes was in no position to be blackballed. At the time she began her employment at Lauderhill, she had not yet received her permanent teacher's certificate. Moreover, she needed a summer teaching job and believed she was not likely to get one by being a "troublemaker."
Based upon Davis' advice, and her own observation that Mocombe's constant sex talk was part of the landscape at Lauderhill, Barnes reasonably feared that Mocombe would continue to be protected by Patton, and that her own career might be seriously impaired if she sought to avail herself of School Board policies and procedures designed to provide employees recourse from sexual and other types of harassment.
Davis' advice to Barnes was reasonable. Davis had witnessed Mocombe conduct himself in an unprofessional and disruptive manner at faculty meetings with no apparent consequences.
Interestingly, at least by the time of the hearing, Mocombe's perception of his relationship with Patton differs
from the perception shared by most of Lauderhill's professional staff. Mocombe came to feel that Patton would go out of his way to write [Mocombe] up for anything which Patton believed to be a challenge to his authority. But the totality of the evidence suggests that at all times material to this case, the belief widely held by Lauderhill staff that Patton's patience with Mocombe was practically unlimited, is closer to the truth.
By March of 2001, Mocombe's conduct toward Barnes had escalated. One day, Barnes came in to the teachers' lounge to check mail. About a half dozen teachers were present.
Mocombe freely--indeed proudly--described this incident: he said, for all to hear, "I can't stand up because my dick is hard, or I'm hard."
Davis was coming to believe that she could no longer ethically ignore Mocombe's conduct toward Barnes. Around the time Bryant made her written complaint to Patton, Davis went to Patton on Barnes' behalf. Patton in turn went to Barnes and told her that she had to put her complaints about Mocombe into writing if anything was to be done. Barnes did so.
By way of defense, Mocombe suggests that Barnes was the aggressor, pursuing him to consummate a physical relationship. Mocombe says he chose not to have sex with Barnes. This excerpt from Mocombe's testimony fairly summarizes his theory of the case:
The same reason she was inquiring of Mr. Edwards about me, and she found out
about my dealings with women. I turned her down, all right. If that's what you want to ask, we didn't have sex because I didn't want to have sex.
Q. She wanted sex but you didn't?
A. I didn't say that. I just said we didn't have sex. I chose not to have sex.
I didn't say --
Q. Did you ask her?
A. We came close a couple of times in the classroom.
Q. To have sex with her?
A. That's what you want. Yeah, we did.
We came close a couple of times in the classroom. Every day for 20 to 25 days in the classroom with this woman, and you think -- maybe you [sic] blind. Yeah, I'm a good looking man. You must be out of your mind.
(Transcript page 310, lines 6-24).
Mocombe also claimed, with reference to Barnes, "This girl hugged me every morning in the lounge" and that on at least five occasions she voluntarily engaged with him in activities which, if done by teenagers, would be called "making out."
Mocombe never attempted to reconcile this testimony with his admission that he wanted to "get into [Barnes'] pants."
Moreover, there are numerous ways in which the colorful incidents recounted by Mocombe, if they occurred, could be corroborated. For example, Mocombe claims he said to Barnes in the presence of two teachers, one of whom testified at the hearing, that he confronted Barnes after learning she had filed a complaint. As he described the scene, "I was like, hell, no. I didn't do anything to this heifer. I was like just Friday you were kissing me."
Leaving aside the use of Mocombe's highly derogatory
term "heifer," had Mocombe said such a thing in the heat of this particular moment, it surely would have made an impression upon
Barnes and the other witnesses. Yet none of them was questioned about it.
Rather, Mocombe expects the trier of fact to accept his version because, as he put it, "Come on now. Hey, I'm a good looking man. Not only that, I'm intelligent too I don't know
what [sic]. So she is ridiculous. But you know what, she got that off. They set me up. It's good. I like that."
Upon receipt of the written complaints from Bryant and Barnes, Patton, in accordance with School Board procedure, informed Mocombe of the charges and instructed him not to contact either complainant. According to Patton, Mocombe's response to the accusations was nonchalant.
In fact, Mocombe was enraged. He ignored Patton's no-contact directive and approached both Barnes and Bryant in an effort to convince them to drop their complaints.
This is how Mocombe described the scenes when he made his unauthorized approaches to Barnes and Bryant: "You know what the fuck, I'm sorry whatever [sic], just cancel this shit. . . . And then I went over to Tracey Bryant, and I was like what, you were having a bad day. I was asking you are you pregnant. She was like, yeah, she was having a bad day. Ms. Russell asked me to apologize. I like apologized. And that was it. That was it. And Ms. Bryant said she was going to drop it, and then that was it. "
Elsewhere in his testimony, Mocombe described the post-complaint encounter with Barnes in more detail: ". I
walked to her classroom . . . I was like what the fuck is your problem. Are you a psycho. What's the [sic] fuck. You know what, I actually said you are a fucking nut bag. What the hell is this. She was like---she sat on the desk. She got on the desk and was like I'm afraid of you Mocombe. I was like what the fuck is wrong with you. I am like are you a psycho.
I am like are you psychotic."
Because Mocombe is not charged with insubordination or any other infraction based upon his disregard of the instruction that he not communicate with Barnes and Bryant, ordinarily testimony about these communications would be irrelevant and inadmissible. But, Mocombe did not object to testimony about these communications from School Board witnesses, and was eager to talk about these encounters himself. Mocombe appears to view his accounts of these incidents as exculpatory. To the contrary, if Barnes had ever pursued a sexual relationship with Mocombe, one would expect that his tirade about her complaint would have taken a very different form.
Mocombe's testimony on cross-examination provides additional insight into Mocombe's sense of entitlement to disregard basic standards of civility and respect towards colleagues, and to view any attractive co-worker as a potential sex partner. This passage, which summarizes Mocombe's view of the charges against him, is instructive on that point, and also contains an additional admission that he was seeking to have sex with Barnes:
Can you get to the real issue here? I don't believe Mortimer is the actual issue here. The actual issue is regarding Kim Barnes and Tracey Bryant. Simply add
that on to show some kind of -- that I'm an ineffective teacher. I'm a brilliant teacher. Even Patton will admit to that fact, and nothing here has anything to do with my ability to teach. Because I'll be frank, I'm a brilliant teacher, I'm 27 years old. Continue.
Q. Thank you. Let's then go on to the major issue. The heifer as you described Ms. Barnes, you were just seeking to have sex with her; is that right?
A. For the most part, yes. (Transcript page 295, lines 11-24).
On this and several other occasions during his testimony, Mocombe stated, "I'm 27," in contexts which suggested that in his view, his youth exempts him from standards of conduct which apply to older people. The law makes no such distinction.
The common thread which runs through the testimony of witnesses for both sides is that Mocombe believes his youth, good looks and personality exempt him from the constraints of middle class morality, to the extent that it demands that teachers exhibit basic respect for all persons, whether or not, in the teacher's opinion, such respect is deserved.
Mocombe is a young man of obvious intelligence and charisma, and Patton did him a disservice in turning a blind eye to his refusal to conform his conduct to the requirements of the standards of his profession. Even at the hearing, Mocombe was unable to control his desire to articulate, in
crude terms, his contempt for those he disrespects. This exchange from Mocombe's cross-examination is illustrative:
Q. All right. And you also touched her body parts; is that correct?
A. Sure. Don't you touch your wife? (Transcript page 298, lines 6-8).
Asked at the hearing if he acted inappropriately toward Barnes, Mocombe replied, "According to her I did. No, I honestly don't think so, no. I thought it was in jest. . .
. I thought it was just we were something. I didn't just fall off the turnip truck for Christ's sake. I have a Ph.D. in philosophy. Anyway. No, I don't feel I acted inappropriately to Ms. Barnes."
Mocombe has had months to think about it, but he continues to adhere to the belief that he is entitled to give free rein to his hedonistic impulses, and to express them in the crudest possible terms.
Based upon the undersigned's careful observation of the parties and witnesses under oath, and throughout the hearing, and after careful consideration of the record as a whole, the suggestion by Mocombe and his witnesses that Barnes pursued Mocombe and was a willing participant in make-out sessions with him is expressly rejected.
Neither has Mocombe proven a conspiracy by the friends of his former lover to destroy Mocombe's career. Even if School Board witnesses are motivated in whole or part by affection for Hope, and there was no competent evidence to support this view, the question of whether Mocombe may be lawfully terminated must be determined with reference to his conduct, and not the joy, or lack thereof, which witnesses may feel at the outcome.
Prior disciplinary history:
There is a theme which runs through the incidents which give rise to Mocombe's current difficulties. The common denominator is immaturity. Mocombe does not have an adult understanding of how his behavior offends contemporary standards of appropriate workplace behavior, and the corrosive impact of his coarse language and preoccupation with sex upon the professional environment which the public has a right to expect in its schools.
In his short teaching career, he has received three reprimands, all relating to incidents in which he was unable to follow well known rules of acceptable workplace communication.
Mocombe received his first reprimand while still a substitute teacher at Sunrise, where Patton was principal. He was reprimanded for using inappropriate language in the presence of students. The reprimand, dated January 5, 1999, included a directive requiring him to enroll in a teacher training class.
On April 11, 2000, Mocombe was reprimanded for unprofessional and profane comments made toward his former lover, Hope. Mocombe's tirade occurred in Patton's presence.
Mocombe screamed at Hope such comments as, "Fuck you, you bitch--yeah I fucked you, you ain't nothing but a damn whore; you're nothing but a good fuck; I am gonna put my foot up your ass."
The letter of reprimand regarding this incident cited Rule 6B-1.006 which requires that educators refrain from
engaging in "harassment or discriminatory conduct which unreasonably interferes with an individual's performance or professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. "
The letter specifically warned that further misconduct of any nature could result in termination of employment.
On January 10, 2001, Mocombe received a letter of reprimand for sending a chain letter to all of his teaching colleagues at Lauderhill in violation of well-established school
board policy prohibiting the use of the in-house email system for communications unrelated to work.
Mocombe's testimony revealed a complete lack of understanding that he has done anything wrong. Instead, he believes he is being "railroaded" in these proceedings. Based upon his prior disciplinary history, and the manner in which his defense was conducted, the conclusion is inescapable that if reinstated, Mocombe would continue to exhibit, during working hours, his passion for "revolution, education, and hedonism" in whatever manner he pleases.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sections 120.569, 120.57(1), and 231.29(3)(d)3.b.
Petitioner has the burden of proving by a preponderance of the evidence that it has just cause to terminate Respondent's employment. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).
The School Board is authorized to terminate a teacher's employment “only for just cause.” See Sections 231.36(1)(a) and 231.36(6)(a) (2001). The term “just cause” includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Section 231.36(1)(a)(emphasis added).
Mocombe is charged with misconduct in office by reason of the above-described incidents involving Mortimer and Bryant, and the above-described pattern of behavior toward Barnes.
The term “misconduct in office” is defined in Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel” and provides, in pertinent part, as follows:
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.001 sets forth the Code of Ethics of the Education Profession in Florida and provides as follows in
relevant part:
(1) The educator values the worth and dignity of every person . . . .
* * *
(3) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Rule 6B-1.006 sets forth the Principles for Professional Conduct for the Education Profession in Florida and provides as follows in relevant part:
3. Obligation to the student requires that the individual:
(a) shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental or physical health and/or safety.
* * *
(e) shall not intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
(5) Obligation to the profession requires that the individual:
* * *
(d) shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimating, abusive, offensive, or oppressive environment; and further, shall make reasonable effort to assure that the each individual is protected from such harassment or discrimination.
The incidents involving Mortimer and Bryant were acts of misconduct in office, although either one, standing alone, would not warrant termination.
The "cracking" incident, as recounted by both Mortimer and Mocombe, suggests that Mocombe views himself more as a kid than a role model. Mortimer was neither humiliated nor embarrassed by any aspect of this incident.
To the contrary, it is clear that this child could suffer pain and guilt if he perceives that Mocombe was fired on his account.
Patton made no effort to discipline Mocombe for this incident until six months later, after Bryant and Barnes had filed written sexual harassment complaints, so it is understandable that Mocombe does not believe that "Mortimer is the actual issue here." Nevertheless, Mocombe's horseplay with Mortimer compromised the learning environment and constitutes misconduct in office because it demonstrates Mocombe's inability, on this occasion, to value the child's worth and dignity, to maintain the respect and confidence of the Lauderhill community, and to protect the student from conditions harmful to his learning environment.
Teachers are not play-pals to their students. They are expected to behave as professionals and role models at all times. Middle school is a time when students must learn to conduct themselves in a manner which will enhance their prospects for a successful high school experience, and prepare them to assume the responsibilities of adulthood. Mocombe did Mortimer no favor in giving him to understand that he can act around an authority figure at school in the same manner as he might with a peer in his own home.
Moreover, it is not acceptable for a teacher to play with or otherwise show favoritism to one child over his classmates. Students who observe Mortimer "cracking" with Mocombe could easily conclude that they should have that
privilege as well. Similarly, Mortimer and his classmates could be led to believe that they can use foul language and toss objects in other classrooms. Thus, Mocombe's behavior on this occasion had the potential to undermine adult authority throughout the school. If in fact Mocombe is a "brilliant teacher," that is all the more reason for him to conduct himself as an adult because students want to please and be like the adults they admire.
As previously stated, the incident with Bryant also constituted misconduct in office.
It is astounding that Mocombe, a well-educated man, does not know that it is impolite in the extreme to bluntly and publicly inquire of a woman as to whether her weight gain is the result of a pregnancy. In subjecting Bryant to this inquiry, Mocombe violated his obligation to his profession by turning the teachers' lounge, which should be safe haven, into a place where Bryant felt harassed, abused, offended and oppressed by reason of her gender and her size. The School Board has thus proved, by a preponderance of the evidence, that Mocombe's conduct in this instance constituted misconduct in office.
Mocombe's harassment of Barnes, which stretched over a period of months, is, standing alone, sufficient to support the School Board's decision to terminate his employment.
The School Board contends that Mocombe's behavior toward Barnes constitutes immorality within the meaning of
Rule 6B-4.009(2) which states:
[C]onduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual's service in the community.
Additionally, the School Board contends that Mocombe's conduct towards Barnes demonstrates moral turpitude within the meaning of Rule 6B-1.006(5)(d), quoted above.
Moral turpitude "involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. . . ." Tullidge
v. Hollingsworth, 146 So. 660, 661 (Fla. 1933).
Teachers are required to maintain a high standard of conduct. Whether a teacher's conduct constitutes immorality or moral turpitude should be measured against that high standard. Adams v. State, Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981). In Tomerlin v. Dade County School Board, 318 So. 2d 159, 160 (Fla. 1st DCA 1975), the court observed:
A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.
Mocombe had been warned three times in three years to exercise appropriate adult restraint over his written and verbal communication, or risk losing his job. Yet, his
persistent efforts to, as he put it, "get in [Barnes'] pants" demonstrate that Mocombe was unable or unwilling to control his foul mouth and his sexual appetites in the workplace.
While Mocombe and his workplace friends may have felt that his conduct was harmless, a preponderance of the evidence establishes that Barnes, Bryant, and others were deeply distressed by Mocombe's conduct, and his apparent license to indulge his desire to attract attention through the use of vulgar language and other behavior which created a hostile and intimidating environment.
Granted, Mocombe, and the entire Lauderhill staff, received a mixed message from Patton. The evidence establishes that many of Mocombe's colleagues, including Barnes, the target of his unwelcome advances, and her mentor, an experienced teacher, felt that Patton would protect Mocombe no matter what.
Perhaps Patton's failure to back the written reprimands with close supervision lulled Mocombe into the belief that he could behave at work according to his own moral code, in which women were lucky to get his attention. Be that as it may, the duty to conduct oneself as a professional, and to refrain from conduct which would not be tolerated in any workplace, let alone a school, is personal to the individual who is privileged to be employed as a teacher. In this case, the School Board has demonstrated by a preponderance of evidence--much of it provided by Mocombe and his witnesses--- that Mocombe's conduct towards Barnes rises to a level of
immorality and moral turpitude sufficient to support a finding of misconduct in office, warranting termination for cause.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order discharging Mocombe from further employment in the Broward County Public Schools.
DONE AND ENTERED this 14th day of March 2003, in Tallahassee, Leon County, Florida.
___________________________________
FLORENCE SNYDER RIVAS
Administrative Law Judge Division of Administrative
Hearings
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 Division of Administrative
this 14th day of March, 2003.
COPIES FURNISHED:
Robert F. McKee, Esquire Kelly & McKee
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316-1924
Dr. Franklin L. Till, Jr., Superintendent Broward County School Board
600 Southeast Third Avenue
Fort Lauderdale, Florida 33301-3125
Daniel J. Woodring, General Counsel Department of Education
325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
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.
| Issue Date | Document | Summary |
|---|---|---|
| May 20, 2003 | Agency Final Order | |
| Mar. 14, 2003 | Recommended Order | Teacher`s persistent sexual harrassment of a colleague warrants termination. |
