STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4860

)

ROBERT AGOSTINI, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on January 28, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Rosanna J. Lee

Honigman, Miller

390 Orange Avenue, Suite 1300 Orlando, Florida 32801-1677

For Respondent: Ronald G. Meyer

Anthony D. Demma

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of misconduct in office or wilful neglect of duty as a teacher.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 27, 1993, Petitioner alleged that Respondent was at all times material to the case a teacher employed by Petitioner under a professional service contract. The Administrative Complaint alleges:

That on or about multiple dates during the 1992-93 school year, Respondent . . . did knowingly and willfully engage in the following conduct:

1. Repeatedly made inappropriate comments of a sexual nature to and about a female student(s).

2. Conveyed to a female student that her grade would be better if she engaged in a sexual act with the respondent.

3. Created a hostile and uncomfortable working atmosphere which subjected students to sexual intimidation and harassment.

4. Brushed against a female student's breasts in such a manner as to create discomfort for the student.

5. Grabbed a female student(s) buttocks.

The Administrative Complaint alleges that such actions constitute misconduct in office, willful neglect of duty, and breach of his employment contract. At the commencement of the hearing, Petitioner agreed that the allegation of a breach of the employment contract adds nothing to the allegations of misconduct in office and willful neglect of duty.

The parties agreed at the commencement of the hearing that the applicable law is Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code. The parties stipulated, as alleged in the Administrative Complaint and stated in the Prehearing Stipulation, that Respondent had a professional service contract at the time of his termination.

At the beginning of the hearing, Respondent was given leave, over objection, to add two witnesses to the witness list. Despite an offer to withdraw its additional witness if Respondent's two witnesses were not allowed to testify, Petitioner was given leave to add one witness to the witness list.

During the hearing, Petitioner called ten witnesses and offered into evidence 10 exhibits. Respondent called nine witnesses and offered into evidence one exhibit. In addition, Respondent was given three weeks to take the deposition of C. W., who is a student or former student at Mid-Florida Tech, and file the transcript as a late-filed exhibit. Petitioner was given leave to depose C. W. prior to the deposition to perpetuate testimony to be taken by Respondent. Petitioner was given three weeks to take the depositions of Rex Hart and Barney Smith to perpetuate rebuttal testimony and file the transcripts as late- filed exhibits. The deposition transcripts of C. W. and Rex Hart were so filed. All exhibits were admitted except Petitioner's Exhibit 6. The testimony of three witnesses called by Petitioner was proffered.

The transcript was filed February 14, 1994. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Respondent is a professional chef. After teaching at two schools for

   17 years in Massachusetts, Respondent moved to Florida and became a culinary arts instructor at Mid-Florida Tech in January, 1990. Mid-Florida Tech is a vocational educational center operated by Respondent, evidently for students of at least high school age.

   
   

2. Respondent was employed at Mid-Florida Tech as a culinary arts instructor through May, 1993. For the 1992-93 school year, Respondent was employed under a professional service contract.

3. Typically, the culinary arts program leads to a certificate certifying that the student has completed the course requirements in training to become a chef. The course normally takes 18 months of classwork, which consists mostly of practical exercises by the students preparing various types of food.

   
   

4. There is little lecturing in the class, which is located in a very large institutional kitchen with four or five workstations. There is an adjoining dining room in which the students can serve the meals that they have prepared. There is also a walk-in refrigerator in which various foods are stored. Respondent has an office adjoining the kitchen area. The office has a large window with no blind, so that it is visible from almost all points within the kitchen.

   
   

5. Respondent taught the students and was assisted on an occasional basis by two visiting chefs. Much of the classwork, which took place daily from about 7:30 am to 2:00 P.M., consisted of students preparing food under the direct supervision of Respondent, who would circulate among workstations through the vast kitchen.

   
   

6. The class during the 1992-93 school year was loosely structured. Several of the students were special education students. Some students presented behavioral problems. Some students were adults who were expressly interested in retraining for a new career. For a variety of reasons, attendance was sometimes irregular as some students merely cut the class and others could not always attend due to the conflicting demands of children and jobs.

   
   

7. J. D. became a student at Mid-Florida Tech in February, 1993. She enrolled in the culinary arts department and was assigned to Respondent's class. The mother of four children, J. D. received financial assistance from a private industry council and intended to obtain her culinary certificate in order to begin a new career and better support her children financially.

   
   

8. J. D. became uncomfortable in Respondent's classroom due to the sexual tone of Respondent's comments. Respondent interspersed numerous sexual jokes and innuendos with his teaching. Amid the confusion that often prevailed in the class, Respondent would circulate, "entertaining" the students with various comments and behaviors, such as a recurring imitation of stereotypical behavior associated with male homosexuals. In this routine, Respondent would place one hand on his hip, hold another hand in front of him with a limp wrist, raise his voice an octave, and sometimes muse to the class whether he wanted a boy or a girl today.

   
   

9. At some point, the sexual humor became vulgar by any reasonable standard. Respondent one time recounted to J. D. that he had a dream that she was sitting on his face while he was having oral sex with her and, when he awoke, he found his cat sleeping on his face. Respondent recounted versions of this dream to J. D. on two occasions: one time they were in the kitchen out of hearing range of other students in the area and another time in the presence of another male classmate E. K., who was a good friend of J. D.

   
   

10. On another occasion, J. D. was speaking to Respondent about an upcoming test. There were various competencies that each student had to demonstrate to Respondent's satisfaction in order to progress to the point where they could take the final test leading to the certificate at the conclusion of the program. Respondent assured her that if she had sex with him "three different ways" that she would not have to take the test.

11. Another time, as J. D. and Respondent were talking just outside of his office, he said to her, "Come behind my desk and given me some head." By "head," Respondent was referring to oral sex.

    
    

12. On one other occasion, Respondent greeted J. D. with the remark that she looked hot and he wanted to peel the pants off her. The record does not disclose any additional remarks that Respondent made to J. D. directly or to the women in the class generally. However, he did, on more than one occasion, moan as J. D. walked by him.

    
    

13. Three times Respondent initiated offensive touching. One time, he followed J. D. into the walk-in refrigerator and briefly grabbed her buttocks. Another time he passed by her closer than was necessary and brushed her breasts with his hand or shoulder. Another time he squeezed against her body as she and other students were circled around a workstation watching a demonstration by a visiting chef.

    
    

14. The above-described sexual behavior was unwelcome by J. D., who found Respondent repulsive. In part due to a vast difference in their size and personalities--Respondent is more extroverted and J. D. more introverted--J. D. felt intimidated by Respondent. She did not ask him to stop this offensive behavior for fear of offending him and jeopardizing her ability to obtain a chef's certificate. She did not complain to other teachers or administrators until May, 1993, for the same reasons.

    
    

15. Due to her increasing repulsion at Respondent's behavior and the demands of a new job, J. D.`s attendance fell off somewhat toward the end of Respondent's employment with Mid- Florida Tech. There is no doubt that Respondent's behavior, regardless of his intentions, interfered with J. D.'s education and would have interfered with the education of any reasonable person under the circumstances.

    
    

16. Another perspective on Respondent's behavior during the 1992-93 school year is provided by a female staff person, Clair Blanchard. Ms. Blanchard is a special needs coordinator, whose responsibilities required that she visit Respondent's classroom periodically to monitor the progress of the special education students attending Respondent's class.

    
    

17. Respondent's routine with Ms. Blanchard was to hang over her at Wednesday luncheons, in front of all the other students, singing in imitation of the entertainer, Dean Martin. Respondent would get in Ms. Blanchard's face and tell her she was beautiful. He would wrap his massive arms around her, as well as other females in Ms. Blanchard's presence. Ms. Blanchard repeatedly demanded that Respondent stop hugging her and he ignored her.

    
    

18. On another occasion, Ms. Blanchard and Respondent had a conference with a male student, whose misbehavior jeopardized his continued enrollment at Mid-Florida Tech. The purpose of the meeting was to discuss the student's behavior and warn him that he could be expelled if he did not straighten out. Despite the gravity of the situation, Respondent undercut Ms. Blanchard's role by constantly blowing her kisses across the desk in full view of the student.

    
    

19. A situation unrelated to the present case led to Respondent's removal from the classroom in May, 1993. Respondent did not endear himself to certain administrators at Mid-Florida Tech for a variety of reasons, such as his involvement of the union in a pay issue, flamboyant classroom behavior, and loose classroom management.

20. In any event, a long-standing dispute concerning Respondent's contract status came to a head toward the end of the 1992-93 school year. Fearing that Respondent would not be hired to teach the following year, various students became involved in an effort to retain Respondent. Many of the students were quite fond of Respondent. Some of the students feared only that the culinary arts course would be discontinued if Respondent were not rehired.

    
    

21. It is unclear to what extent Respondent was involved with the students' efforts, but he did telephone a newspaper reporter, hand the phone to

    J. D., and ask her to tell the reporter what was going on and express her support for Respondent. J. D. did as instructed, and the reporter told her that there was no story there.

    
    

22. Sensing that Respondent was behind the students' efforts to allow him to keep his job, the administration relieved Respondent of his teaching duties on May 14, 1993, and assigned him administrative duties until the end of the school year. Respondent's replacement was Valerie Shelton, who was a female teacher in the culinary arts program. Two weeks after Ms. Shelton assumed Respondent's duties, J. D. felt sufficiently emboldened to complain to her about Respondent. Ms. Shelton arranged for the still-reluctant J. D. to speak with an administrator. Following an investigation, Petitioner terminated Respondent's contract on the grounds set forth in the Administrative Complaint.

    
    

23. Respondent provided no insight into his behavior, as he elected at the hearing to deny that any of the above-described events took place. Likely, Respondent intended to be humorous with at least some of his comments. As J. D. reported to Ms. Shelton, J. D. herself believed at first that Respondent's behavior was, although in poor taste, only joking.

    
    

24. However, as the comments became more vulgar and accompanied by offensive touching, J. D. was more profoundly affected by Respondent's behavior. Regardless of Respondent's true intent, J. D. became more reluctant to attend class and contemplated dropping out of the culinary arts program. Regardless of Respondent's specific intent or state of mind when engaging in this behavior, the reaction of J. D. was reasonable under the circumstances. Respondent's conduct constitutes misconduct in office as it pertains to J. D.

    
    

25. Respondent's misconduct, as described above, was so serious as to impair his effectiveness as a teacher in the school system. In addition to the effect that he had on J. D., Respondent undercut the authority of another teacher, Ms. Blanchard, and thereby implicitly condoned student misbehavior and explicitly reinforced the sexually abusive classroom atmosphere. Despite Ms. Blanchard's protests, Respondent continued to hug her repeatedly in the presence of students and treated her in a demeaning manner based on sex. This behavior undermined her authority with the special needs students and, more importantly, with the other students who periodically mistreated the special needs students.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

27. Section 231.36(1)(a) provides that all contracts with instructional staff, including professional service contracts, shall contain provisions "for dismissal during the term of the contract only for just cause." The statutes defines "just cause" as including "misconduct in office" and "willful neglect of duty."

    
    

28. Rule 6B-4.009(3) provides that misconduct in office is a violation of the provisions of Rule 6B-1.001 or 6B-1.006, if the violation "is so serious as to impair the individual's effectiveness in the school system."

    
    

29. Rule 6B-1.006(3) imposes upon a teacher the following obligations with respect to students:

    
    

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    1. Shall not harass or discriminate against any student on the basis of . . . sex . and shall make a reasonable effort to assure that each student is protected from

       harassment or discrimination.

    2. Shall not exploit a relationship with a student for personal gain or advantage.

    
    

30. The language of Rule 6B-1.006(3) resembles the language of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et sec.). In Harris v. Forklift Svstems, Inc., U.S. , 114 S. Ct. 367 (1993), the Supreme Court held that a hostile work environment does not require conduct "so severe as to be expected to seriously affect plaintiff's psychological well-being" or that the complainant be "subjectively so offended that she suffered injury." Id. at 371.

    
    

31. The Harris decision explains:

    
    

    This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we point out in Meritor [Savings Bank v. Vinson. 477 U.S. 57,

    106 S. Ct. 2399 (1986)i, "mere utterance of an . . . epithet which engenders offensive feelings in an employee" . . . does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.

    But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from

    advancing in their careers. . 114 S. Ct. at 370-71.

    
    

32. The Harris Court adds that the determination of a hostile work environment requires consideration of all of the circumstances, including

    
    

    the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the

    
    

    employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

    
    

    114 S. Ct. at 371.

    
    

33. Petitioner has proved that Respondent violated each of the above-cited subsections of Rule 6B-1.006(3) in his dealings with J. D. Even though not misconduct in office in itself, Respondent's sexually abusive treatment of Ms. Blanchard and its effect upon the students provides additional evidence of the loss of Respondent's effectiveness as a teacher.

    
    

34. Petitioner has proved that Respondent violated the prohibition contained in Rule 6B-1.006(3) against sexual harassment or discrimination of students, as well as intentionally and unnecessarily disparaging or embarrassing

    J. D. and exploiting the position as a teacher for the personal gain evidently derived from this ongoing exploitative behavior.

    
    

35. Petitioner has proved that Respondent has committed misconduct in office, in violation of Rule 6B-4.009(3), and that the misconduct in office "is so serious as to impair [Respondent's] effectiveness in the school system."

    
    

36. It is unnecessary to consider whether the evidence establishes that Respondent wilfully neglected his duties.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's contract for misconduct in office.

ENTERED on April 4, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1994.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-4860

Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance.

3-4: rejected as recitation of evidence. 5: rejected as subordinate.

6: rejected as recitation of evidence. 7-22: rejected as subordinate.

23-28: adopted or adopted in substance. 29: rejected as subordinate.

30-31: adopted or adopted in substance. 32: rejected as subordinate.

33: rejected as recitation of evidence. 34: adopted or adopted in substance.

35-36: rejected as subordinate. 37-38: rejected as irrelevant.

39-41: adopted or adopted in substance.

Rulings on Respondent's Proposed Findings

1-3: adopted or adopted in substance. 4-5: rejected as subordinate.

6-9: adopted or adopted in substance.

10-11: rejected as recitation of evidence and subordinate. 12-13 (first and second sentences): adopted or adopted in

substance.

13 (third sentence): rejected as unsupported by the appropriate weight of the evidence.

14: rejected as subordinate.

15-16: rejected as unsupported by the appropriate weight of the evidence.

17: rejected as unsupported by the appropriate weight of the evidence to the extent that the effect of Respondent's offensive behavior is discounted.

18: rejected as irrelevant. 19-27: rejected as subordinate.

COPIES FURNISHED:

Hon. Douglas L. "Tim" Jamerson Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

Dr. Donald Shaw

Superintendent, Orange County School District

P.O. Box 271

Orlando, Florida 32802-0271

Rosanna J. Lee Honigman, Miller

390 Orange Ave., Ste. 1300 Orlando, Florida 32801-1677

Ronald G. Meyer Anthony D. Demma

Meyer and Brooks, P.A.

P.O. Box 1547

Tallahassee, Florida 32302

Frank C. Kruppenbacher Kruppenbacher & Associates, P.A.

P.O. Box 3471

Orlando, Florida 32801-3685

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-004860

Orders for Case No: 93-004860