STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF MANATEE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 98-4870

)

MARK TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 11, 1999, a formal administrative hearing in this case was held in Bradenton, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard G. Groff, Esquire

Alan Prather, Esquire

Dye, Deitrich, Prather, Petruff & St. Paul, P. L.

Post Office Box 9480 Bradenton, Florida 34206-9480

For Respondent: Ben R. Patterson, Esquire

Patterson & Traynham Post Office Box 4289

Tallahassee, Florida 32315-4289 STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists for termination of the Petitioner’s employment at the Manatee County School Board.

PRELIMINARY STATEMENT

By Petition for Dismissal dated August 6, 1998, Mark Taylor, an employee of the Manatee County School Board, received notice that the Superintendent of Schools was recommending to the Board the termination of Mr. Taylor’s employment for misconduct.

As grounds for the proposed dismissal, the Superintendent cites incidents of misconduct and "sexual harassment."

Mr. Taylor challenged the proposed dismissal and requested a formal hearing. The School Board forwarded the request to the Division of Administrative Hearings, which scheduled the dispute for hearing.

At the hearing, the School Board presented four witnesses and had Exhibits numbered 1-4 admitted into evidence. Mr. Taylor presented the testimony of two witnesses and had Exhibits numbered 1-4 admitted into evidence.

A Transcript of the hearing was filed. Both parties filed proposed recommended orders.

On April 5, 1999, the Respondent filed a Motion for Attorney’s Fees and Costs. The Petitioner has filed a response to the motion. The Respondent’s Motion for Attorney Fees and Costs is denied.

FINDINGS OF FACT

1. At all times material to this case, Mark Taylor was employed pursuant to a collective bargaining agreement by the Manatee County School Board.

2. Mr. Taylor worked as a mechanic for the School Board’s transportation department at a maintenance facility.

3. On January 17, 1997, Mr. Taylor obtained a cartoon depicting a boy engaging in sexual intercourse with a sheep, while the shepherd, a tearful girl, watches. The cartoon indicates that the boy is speaking to the girl. A caption reads "stop crying you’re next."

4. Mr. Taylor labeled the characters in the cartoon. The shepherd is identified as "Kim", the boy is identified as "Steve," and the sheep is identified as "Shawn."

5. Early one morning, before most other employees had arrived at the workplace, Mr. Taylor placed the labeled cartoon on the toolbox of Sean Monroe, another School Board mechanic. Unbeknownst to Mr. Taylor, he was apparently observed placing the cartoon on the toolbox.

6. According to Mr. Taylor, Mr. Monroe’s wife was named "Kim." The "Steve" in the cartoon apparently refers to Steve Hensel, another School Board employee. The cartoon very loosely refers to a conversation that allegedly occurred between

   Mr. Hensel and Mr. Monroe. Mr. Hensel testified at the hearing. Neither Sean nor Kim Monroe testified at the hearing.

7. Another employee of the transportation maintenance facility, a female named "Kim" (hereinafter Kim no. 2) apparently saw the cartoon and became distressed. Kim no. 2 did not testify at the hearing.

8. An investigation was initiated into the incident. Eddie Ponder, Mr. Taylor’s supervisor, questioned him about the incident. Mr. Taylor initially denied any involvement, but subsequently admitted his responsibility for the labeling and placement of the cartoon.

9. A written reprimand, dated February 12, 1997, and signed by Mr. Ponder and Mr. Taylor, details Mr. Taylor’s involvement in the incident. The letter states "[s]hould this happen again, disciplinary action will be taken that could range from suspension to dismissal."

10. As a result of the cartoon incident, employees at the maintenance facility, including Mr. Taylor, attended a sexual harassment sensitivity training session on April 1, 1997. The training session consisted of discussion and watching a videotape called "The Issue is Respect." Mr. Taylor signed a written acknowledgment of his attendance.

11. The written acknowledgment states "that I understand that (1) I have the right to work in an environment free from sexual harassment, and (2) I have a responsibility not to engage in behaviors that constitute sexual harassment; and (3) if I feel I am being harassed, I have the right and responsibility to communicate this directly to the harasser or to a non-involved supervisor."

12. Mr. Hensel, who also attended the training session, testified that as the session ended and the employees left the

    room, Mr. Taylor made derogatory remarks about the training session and opined that "they couldn't do anything to us anyhow." Mr. Taylor testified that he made no such remarks. Mr. Hensel's recollection is credited.

13. Mr. Taylor also testified that the training videotape did not address issues related to workplace sexual discussions with co-workers. Mr. Taylor testified that the videotape did not address issues created by a co-worker's reaction to an ill- considered sexual remark.

14. Review of the videotape establishes that the training course addressed many forms of behavior which can be identified as workplace "sexual harassment," including posting offensive photos and drawings, engaging in workplace discussions of personal sexual activities, and questioning the sexual proclivities of other employees.

15. In June 1998, Mr. Taylor was with approximately six other employees including Mr. Hensel in the maintenance facility lunchroom. "Sean" allegedly remarked that he had seen Mr. Hensel and Kim no. 2 exiting the office area together earlier in the day. According to Mr. Hensel’s testimony, Mr. Taylor then remarked "Well, now she’s doing all three, me, Mike Eaton and her husband," and followed up by saying "not so sure her husband." Mr. Hensel testified that Mr. Taylor may have said "fucking" rather than "doing," but in any event, the implication was that Kim no. 2 was engaging in sexual intercourse with several people.

16. Kim no. 2 was not present at the time Mr. Taylor suggested that she was engaging in sexual intercourse with multiple partners, but she became aware of the comment and, according to Mr. Hensel, asked him later that day to repeat the remark to her.

17. School Board authorities became aware of the June 1998 incident. Interviews were conducted with persons present in the lunchroom.

18. Based on the incidents set forth herein, Mr. Taylor’s supervisor recommended his dismissal.

19. The Superintendent of Schools concurred with the recommendation, and forwarded it as his own recommendation to the Manatee County School Board.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

21. In order to prevail, the Petitioner must establish by a preponderance of the evidence that the Respondent's actions constitute proper cause for termination. Allen v. Dade County School Board, 571 So. 2d 568 (Fla. 3rd DCA 1990). In this case, the burden has been met.

22. The School Board has the authority to discipline non- instructional personnel for just cause pursuant to Section 231.3605(2)(c), Florida Statutes, which provides as follows:

    In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.

23. In relevant part, Article VI, Section 8, of the 1996- 1999 Negotiated Collective Bargaining Agreement between the Manatee County School Board and the AFSCME Local 1584 provides as follows:

    Discipline: Disciplinary action may include the following: oral reprimand, written reprimand, suspension for just cause (notice to be given in writing) or discharge for just cause.

    
    

24. The Respondent asserts that this case should be dismissed because the activities do not constitute sexual harassment. Specifically, the Respondent asserts that there is no non-hearsay evidence establishing that the allegedly offended party, Kim no. 2, was in fact offended by Mr. Taylor’s behavior.

25. The Petition for Dismissal addresses the subject of sexual harassment in paragraph 12, and provides citation to School Board policies 128 and 130 that are specifically directed towards issues of sexual discrimination and harassment.

26. The evidence is insufficient to establish that Mr. Taylor’s offensive behavior meets the legal definition of sexual harassment. The failure of the School Board to offer any

    testimony by Kim no. 2 precludes any finding that Mr. Taylor’s behavior was offensive or threatening to her.

27. However, paragraph 13 of the Petition for Dismissal is directed towards Mr. Taylor’s "misconduct." The Petition states that his actions "constitute misconduct which seriously disrupts the effectiveness of the public school system as operated by the School Board. The conduct and action of the Employee constitutes just cause . . . warranting suspension and subsequent dismissal of Employee." It is not necessary to establish that the misconduct rises to the level of legally actionable sexual harassment to warrant termination. Whether or not anyone was offended by remarks against which Mr. Taylor had been warned is irrelevant.

28. The School Board has made efforts to address issues related to sexual harassment in the workplace. Mr. Taylor participated in an educational program intended to identify unacceptable workplace behaviors, which was the direct result of the cartoon incident that he initiated.

29. Although Mr. Taylor testified that the videotape did not address workplace sexual discussions or consideration for others, the videotape clearly includes such situations. In fact, the general theme of the entire videotaped presentation was that respect for a co-worker’s feelings is paramount in avoiding the unintended effects of poorly considered remarks. Mr. Taylor apparently missed the point.

30. The Respondent asserts that it is inappropriate to consider the cartoon incident in determining whether disciplinary action is warranted in this case. It is not inappropriate to consider the work history of an employee in determining whether the employment should be terminated. In fact, the Respondent offered and had admitted into evidence Mr. Taylor’s performance evaluations. It is not inappropriate to consider, in a disciplinary case, whether an employee has been previously disciplined for related misconduct.

31. In this case, the proposed disciplinary action results from Mr. Taylor’s behavior in the lunchroom in June of 1998. His behavior was directly contrary to that which was addressed in the sexual harassment training session and video. His behavior was directly contrary to that for which he was previously warned. It is not inappropriate to consider an employee’s failure to follow clear warnings against specific misconduct when considering whether termination is appropriate, even though the warnings were the result of earlier misconduct. Such consideration does not constitute punishing an employee a second time for a previous disciplinary incident.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Manatee County enter a final order terminating the employment of Mark Taylor.

DONE AND ENTERED this 30th day of April, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative 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 Hearings this 30th day of April, 1999.

COPIES FURNISHED:

Richard G. Groff, Esquire Alan Prather, Esquire

Dye, Deitrich, Prather, Petruff & St. Paul, P. L.

Post Office Box 9480 Bradenton, Florida 34206-9480

Ben R. Patterson, Esquire Patterson & Traynham

Post Office Box 4289 Tallahassee, Florida 32315-4289

Dr. S. Gene Denisar, Superintendent School Board of Manatee County

Post Office Box 9069 Bradenton, Florida 34206-9069

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-004870

Orders for Case No: 98-004870