STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN RUIZ, AS SUPERINTENDENT ) OF NASSAU COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-3251

)

JEFFERY DEAN JOHNS, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the administrative hearing of this case on September 14, 2000, in Fernandina Beach, Florida.

APPEARANCES

For Petitioner: Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

For Respondent: Martha F. Dekle, Esquire

806 G Street

Post Office Box 1644 Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated April 10, 2000, Petitioner suspended Respondent with pay and notified Respondent that Petitioner intended to seek appropriate discipline including dismissal from employment by the Nassau County School Board (the "Board"). On June 23, 2000, Petitioner suspended Respondent without pay.

Respondent timely requested an administrative hearing. Petitioner referred the matter to the Division of Administrative Hearings ("DOAH").

At the hearing, Petitioner presented the testimony of two witnesses and submitted two exhibits for admission in evidence. Respondent testified in his own behalf. The parties submitted three joint exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed on October 2, 2000. Petitioner filed its proposed recommended order ("PRO"). Respondent timely filed his PRO on November 1, 2000, in accordance with the agreement of parties.

FINDINGS OF FACT

1. Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years.

2. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan.

3. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria.

4. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra.

5. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes.

6. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager.

7. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed.

8. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women.

9. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager.

10. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed.

11. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret.

12. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment.

13. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of:

    . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when:

    
    

    . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment.

14. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment.

15. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C.

16. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.

    CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

18. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for sexual harassment. McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996); Allen vs. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo vs. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

19. Petitioner showed by a preponderance of the evidence that Respondent engaged in sexual harassment. However, Petitioner failed to show by a preponderance of the evidence that termination of employment is authorized or reasonable.

20. The progressive discipline prescribed in the collective bargaining agreement is a binding contract and requires Petitioner and the Board to follow the progressive discipline provisions. Petitioner asserted that the progressive discipline provisions should be disregarded solely on the unsupported argument that failure to do so would expose the Board to civil damages. However, Petitioner failed to cite any legal authority to support its argument, and Ms. Sullivan never complained of sexual harassment. Petitioner has the burden of proving the authority for, and reasonableness of, any proposed penalty.

21. Application of the progressive discipline provisions in this case supports the suspension without pay from June 23, 2000,

through the date of the this Recommended Order but does not support termination of employment. The offense was a single isolated incident that lasted approximately 10 minutes.

Respondent cooperated in the investigation and otherwise has had an exemplary employment history with no prior discipline.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension.

DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida.

DANIEL MANRY

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 20th day of November 2000.

COPIES FURNISHED:

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400

Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

Dr. John L. Ruiz, Superintendent Nassau County School Board

1201 Atlantic Avenue

Fernandina Beach, Florida 32304

Brent P. Abner, Esquire Suite F

4741 Atlantic Boulevard

Jacksonville, Florida 32207

Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

Martha F. Dekle, Esquire 806 G Street

Post Office Box 1644 Jacksonville, Florida 32207

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.

Docket for Case No: 00-003251

Orders for Case No: 00-003251