STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

SCHOOL BOARD OF OSCEOLA COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 85-3920

)

DAN QUINN, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on June 2 and 3, 1986, in Kissimmee, Florida, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings. The parties were represented by counsel.

APPEARANCES

For Petitioner: Andrew B. Thomas, Esquire

Post Office Box 305 Orlando, FL 32802

For Respondent: Donald T. Smallwood, Esquire

Post Office Box 2445 Kissimmee, FL 32742

ISSUE

Whether Respondent, a non-instructional employee of Petitioner, should be dismissed on charges that he made unwelcome and offensive sexual advances toward several female employees over whom he had authority.

BACKGROUND

In November 1985, the Superintendent of the School Board of Osceola County ("School Board") filed an administrative complaint charging Dan Quinn ("Respondent") with misconduct and seeking his dismissal. Specifically, the complaint alleged that Respondent was employed by the School Board as a trainer of

school bus drivers that he had authority to assign field trips and grant short-term leave to bus drivers: that on various occasions during the last three years, he made unwelcome and offensive sexual advances toward several female bus drivers, and that he promised them employment benefits for cooperation, and adverse consequences for non-cooperation.

After Respondent denied the charges and requested an administrative hearing, the School Board forwarded this case to the Division of Administrative Hearings. Hearing was thereafter set for June 2 and 3, 1986.

On December 6, 1985, Respondent moved to dismiss the charges, which motion was denied.

On March 31, 1986, the School Board moved for an order compelling discovery, asserting that Respondent had failed to timely and fully respond to interrogatories; an award of $200.00 as attorneys' fees occasioned by the motion was also sought.

Respondent filed no opposition and on April 15, 1986, the motion to compel was granted. He was allowed 10 days to respond to the interrogatories and; also; to file any opposition to; or request a hearing on whether attorneys' fees should be awarded. He filed no opposition and failed to request a hearing.

Consequently, the motion is granted and Respondent should be; and is; ordered to pay Petitioner $200.00 as reasonable attorneys' fees incurred in obtaining the order compelling discovery. Payment should be made within 10 days of entry of the School Board's final order in this case.

At hearing, the School Board presented the testimony of J.F., M.S., A.H., Dan Quinn (the Respondent), M.S., J.B., Julie Drawdy; and Bill Vogel.1 Respondent testified on his behalf and presented the testimony of Charles Pullen, Charlie Horn, Wendy Horn, Grady Wilson; Johnnie Horn, Thomas Tomlinson, William Whitehead, Albert Nieman, Jr., Robert Reitz, Barbara Reitz, Dorothy Prentice, Lois Hartzog, Shirley Olive, Max Waters, Robert Renick, Shirley Bennett, Sandra Friddle, and Vicky Friddle. School Board Exhibit Nos. 1 and 2 and Respondent's Exhibit Nos. 1 through 6 were received in evidence.

The transcript of hearing was filed on July 17, 1986.

Proposed findings of fact and conclusions and replies were filed by August 29, 1986. Rulings on the proposed findings are contained in the attached Appendix.

1

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent, Dan Quinn, has been employed by the School Board for 16 years. From July 1981 until November 1985 (when he was charged with misconduct and suspended from duty), he was employed as a driver trainer. In that position he not only trained school bus drivers, but assigned them school field trips for which they received extra pay. His other job duties included assisting the Supervisor of Transportation in coordinating bus routes and communicating with bus drivers assisting bus drivers with disciplinary problems on buses and riding buses when necessary: assisting mechanics in maintaining service and gas records in gassing buses, obtaining parts, and taking buses to inspection stations: serving as a substitute bus driver when necessary: and "other duties as assigned by the Supervisor of Transportation." (Resp. Exh. 5)

   
   

2. The job of bus driver trainer is a non-instructional position. Respondent did not have a written employment contract with the School Board.

   
   

   II.

   
   

3. The School Board has adopted Rules 4.3.2 and 4.3.3, internal rules not published in the Florida Administrative Code; which provide grounds and procedures for suspending and dismissing non-instructional school employees:

   
   

   1. Suspension Procedure

      
      

      The Superintendent has the authority to suspend non-instructional school employees for emergency reasons, and shall notify the Board immediately of such suspension. The suspension shall be reviewed by the Board at its regular or special meeting, at which time the employee shall be restored to duty or the Superintendent shall be authorized to serve noticed on the employee of charges against him and the date and place of hearing before the Board; at which all parties shall be heard on all matters relevant to the suspension and the employee's continued employment. Upon

      conclusion of the hearing; the Board shall restore the employee to duty, dismiss the employee; or otherwise adopt the recommendations of the Superintendent.

      
      

      For the purpose of this rule the term "emergency" includes, but is not necessarily limited to; any situation arising from the conduct of any Board employee for which the Board may find cause to dismiss the employee, such as immorality, intoxication while on duty, gross insubordination; willful neglect of duty, assaults upon other persons, incompetency, unjustified interruption of the orderly conduct of a school or any school activity, conviction of any crime involving moral turpitude or other misconduct.

      * * *

      
      

   2. Dismissal of Employees

   
   

   Dismissal of non-instructional personnel from employment by the Board shall be as follows:

   
   

   * * *

   
   

   If the quality of the employee's work is unsatisfactory and unacceptable, the Superintendent may recommend dismissal of the employee.

   
   

   (Petitioner's Exh.2)

   
   

   III.

   
   

4. J.F. has been a bus driver employed by the School Board since 1970. At approximately 6:15 a.m. on one morning in January or February 1983, while she was sweeping her school bus before leaving on her route, Respondent entered the bus and passed her in the aisle. After she was seated in the driver's seat, he approached her and, while standing to her right (in the bus aisle), put his left arm behind her neck and around her left shoulder and placed his hand on the side of her breast. He then tried to kiss her on the right cheek. She told him to "knock it off," and "get off the bus." He complied but, while stepping off the bus, told her that, "If you're not good to me, I don't have to give you all these field trips," referring to the lucrative field trips which he assigned to bus drivers. She was embarrassed and offended, but did not report the incident for fear that she would lose her job. (At that time, she did not know whether Respondent had made similar advances toward other bus drivers: she also believed Respondent to be a good friend of Charlie Horn, the Supervisor to whom she would address her complaint.) (Tr.9)

   
   

5. There is no evidence that Respondent ever again made a sexual advance toward J.F. or touched her in an offensive manner. Nor did he carry out his threat to deny her field trips. In school years 1982-83, he assigned her six field trips; in 1983-84, seven.

   
   

   IV.

6. Another incident involving Respondent occurred in 1979 or 1980--five or six years before it was used as grounds to suspend and dismiss him. In the bus garage--at approximately 2:00 p.m. on a school day--Respondent approached M.S., another female bus driver, and asked her what time she would return from her route. She told him and he replied, "well, I'm going to have the air turned on upstairs in the meeting room so you and I can go up there and have some fun," or words to that effect. (Tr.34, 41, 52) She interpreted this as a request for "some kind of sex," and was offended. (Tr.39) She told him that there would be "no way" she would go up there with him. (Tr.41) He laughed and walked away.

   
   

   V.

   
   

7. The next incident involving Respondent occurred on a school day in November 1983--two years prior to its being used as a basis for suspending and dismissing him. A.H., another female bus driver, was in the bus barn in Kissimmee. She had recently been hired. As the other drivers left for a field trip to the Tupperware Auditorium, about 8:45-9:45 a.m., Respondent approached and asked her to go upstairs to a classroom with him so he could show her something. She complied and accompanied him to the classroom. Once inside he turned off the lights, shut the door, reached for her and tried to hug her. She switched the lights back on; he turned them off again. She protested that she didn't want to do this; and she didn't "play games like this." (Tr.63) He put his hand on her breast; she tried to push him away. He then tried to slip his hand inside her pants. She switched the lights back on; he switched them off. He then agreed to go downstairs, saying, "Don't be mad now, I was only kidding; only fooling around." (Tr.64)

   Although his actions were unwelcomed and offended her, she agreed to forget it. Later, he asked her if she was mad; although she was still angry; she said, "No." (Tr.64) She did not report the incident because she was a new employee and feared losing her job or being labeled as a troublemaker.

   
   

8. Almost two years later, A.H. had another unpleasant encounter with Respondent. After inviting her to his office and resolving a problem she had with a newly assigned route, he said, "See what I did for you." (Tr.65) He then began hugging her and tried to kiss her. She pushed him away, and tried to go out the door. He held her by the arm; pushed her back against the closed door and began rubbing up against her. He then left, telling her not to be mad, he was just kidding. These advances, also, were unwelcomed and offended her.

   
   

   VI.

   
   

9. Another incident occurred in October 1984. Respondent approached M.S., another female bus driver. She was standing in the hallway, he put his arm around her and "took a hold" of her right breast. (Tr.96) She considered this an unwelcomed sexual advance and was offended by it.

   
   

10. Later in that school year, Respondent told her that he controlled the assignment of field trips and could "throw a lot of money [her] way." (Tr.97) She replied that she had a second job and did not need field trips. She reasonably interpreted his comment as an implied suggestion that if she submitted to his advances; she would receive employment benefits.

    
    

    VII.

    
    

11. J.B. was another female bus driver employed by the School Board. At approximately 6:15 or 6:30 a.m., during a school day toward the end of 1983, she was sitting in the driver's seat on her bus; checking it out before leaving on her route. It was still dark. Respondent entered the bus and placed his hand on her thigh, with his fingers "going down between" her thighs. (Tr.119) She brushed his hand away. She did not report this incident because she thought she would not be believed.

    
    

    VIII.

    
    

12. Respondent flatly denies that these incidents ever took place. His denial is rejected as unpersuasive. The testimony of the women who received his unwelcome advances is, however, accepted as credible and worthy of belief. These witnesses had no discernible bias or motive to falsify. They were candid and factual, though it was obviously difficult and embarrassing for them to testify.

    
    

    IX.

    
    

13. Except for the complaint of incidents, there is no evidence that Respondent, over the last 16 years, has been other than a responsible and satisfactory employee for the School Board. He never received a bad evaluation.

    
    

    CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1985).

    
    

15. As noted, School Board Rules 4.3.2 and 4.3.3 allow non-instructional employees to be suspended or dismissed for, among other things, immorality, unjustified interruption of the orderly conduct of a school activity, or other misconduct. "Immorality" is defined by the dictionary as including an "immoral act or practice;" that is; an act or practice that is not moral. "Moral" is defined as relating to principles of right and wrong in behavior. Webster's New Collegiate Dictionary (1981). The evidence establishes that Respondent's sexual advances toward employees over whom he had some control were unwelcome and offensive, and contrary to acceptable

    standards of right behavior. His physical advances toward these female bus drivers constitutes immorality as that term is commonly used and understood.

    
    

16. Respondent's demeaning and unwelcome sexual advances toward the female drivers also constitute unjustified interruption of the orderly conducting of the school activity with which they were involved. The female victims of his advances were embarrassed and offended by his conduct, causing them to take steps to avoid him in the future.

    
    

17. Finally; his physical touching of the female employees (without their consent) for his own sexual advantage constitutes "battery;" which is an unlawful touching of another with the intent of bringing about a harmful or offensive contact. McDonald v. Ford, 223 So.2d 553, 555 (Fla. 2d DCA 1969). In McDonald; the court approvingly cited Dean Prosser's (Prosser, Law of Torts, 35 [3d ed. 1964]) descriptions of battery:

    
    

    The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff.

    *

    [The defendant may be liable for battery] where an unappreciative woman is kissed without her consent.

    
    

    * * *

    Taking indecent liberties with a woman without her consent is, of course, a battery.

    
    

    Id. at 555. By committing battery; five times in all, against several female bus drivers, Respondent is guilty of "other misconduct" within the meaning of Rule 4.3.2.

    
    

18. A violation of Rule 4.3.3 has not been proven; however, since his work performance was not unsatisfactory within the meaning of that rule.

    
    

19. Penalty. Respondent's sexual solicitations and physical advances toward the female bus drivers were inexcusable. He embarrassed and offended female employees over whom he exercised some authority; he showed no respect for their rights or feelings; and he breached acceptable standards of right conduct. In determining appropriate disciplinary action; other factors should also be taken into account: the offenses occurred infrequently over a five-year period: since they were not timely reported; he was not warned and given an opportunity to improve: and he has 16 years of satisfactory service as a School Board employee.

    
    

20. A fair consideration of these factors and the nature of his misconduct supports a conclusion that a one-year suspension (without pay) from his employment, commencing in November 1985, is a sufficient disciplinary action. Any reinstatement should be conditioned upon the availability of a comparable position for which he is qualified; resuming his driver-trainer position would most likely be difficult for him as well as the bus drivers.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

1. That Respondent be suspended (without pay) from his employment for one year, commencing in November 1985, and that any reinstatement be conditional upon the availability of a comparable position for which he is qualified. He should not, however; be returned to his former position; and

   
   

2. That; within 10 days of entry of a final order, Respondent pay the School Board the sum of $200.00 as attorneys' fees which it incurred in obtaining an order compelling discovery; dated April 15, 1986.

D0NE and ORDERED this 29th day of August, 1986, in Tallahassee; Florida.

R. L. CALEEN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1986.

ENDNOTE

1/ To avoid further embarrassment the female bus drivers who were the object of Respondent's advances are identified only by their initials.

COPIES FURNISHED:

Donald T. Smallwood, Esq.

P. O. Box 2445 Kissimmee, FL 32742

Andrew B. Thomas, Esq.

P. O. Box 305 Orlando, FL 32802

APPENDIX I.

RULINGS ON THE SCHOOL BOARD'S PROPOSED FINDINGS OF FACT

1-5. Approved in substance.

6. Rejected as irrelevant and misconduct not charged. 7-9. Approved in substance.

1. Rejected as argument, not proposed findings.

2. Approved in substance.

II.

RULINGS ON RESPONDENTS' PROPOSED FINDINGS OF FACT

(unnumbered paragraphs; so pages will be referenced)

1. Rejected as argument, not proposed findings.

2. As to J.F., Respondent said that "If you're not good to me, I don't have to give you all these field trips." This constitutes an attempt to induce cooperation by threatening loss of job benefits; her testimony was credible.

   As to M.S.; the conflict in testimony is resolved in M.S.'s favor; and her interpretation of Respondent's remark was shown to be a reasonable one.

   
   

3. As to A.H.; her testimony is accepted as more credible than the alibi offered by Respondent. The Tupperware Auditorium is nearby and it would not take long for Respondent to commute. Further, the event occurred over two years earlier and any minor discrepancy in date or time is understandable. It is judged less likely that the passage of time caused A.H. to create or imagine personal embarrassment which she did not feel.

   As to M.S., it is considered unlikely that she misunderstood the motive behind his touching of her breast.

   As to J.B.; her testimony was more credible than Respondent's.

4. Rejected as argument, not proposed findings.

Docket for Case No: 85-003920

Orders for Case No: 85-003920