, 2004, in Pensacola, Florida.
For Petitioner: Joseph L. Hammons, Esquire
Hammons, Longoria & Whittaker, P.A.
At issue is whether there is just cause to terminate Respondent's employment contract.
Escambia County School Board (Petitioner or School Board), decided to terminate the employment of Respondent, Sam Scallan
(Respondent or Scallan), effective November 10, 2003. The School Board's action was predicated upon violations of Escambia County School Board Rule 2.05, an ethics policy which prohibits offensive sexual innuendo in the workplace. Scallan timely asserted his right to challenge the School Board's decision to terminate his employment.
The identity of witnesses and exhibits and attendant rulings are reflected in the two-volume transcript filed March 4, 2004.
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.
Scallan has been employed by the School Board since November 1976. He began his career as an assistant to the Director of the Internal Funds Department.
Over the years the department evolved into what is now the Department of Internal Auditing. Scallan served for over two decades as the Director of Internal Auditing, a position to which he was promoted about four years after starting with the School Board.
Scallan's position is one of utmost trust, responsibility and power. He is one of only three of Petitioner's 5000 employees who report directly to the elected School Board. The vast
majority of Petitioner's employees report to and are evaluated by individuals who, instead, are accountable to fellow staff members.
Scallan, on the other hand, is accountable to the School Board through an audit committee which is comprised entirely of volunteers.
At all times material to this case, Scallan supervised six employees including two internal auditors, a departmental secretary, an inventory clerk and two part-time university students known as co-op students.
As Director of Internal Auditing, Scallan was employed under a contract for a 12-month term commencing July 1, 2003, and concluding June 30, 2004. The contract is subject to all laws, rules, regulations, are policies governing Petitioner and its employees. The contract specifically provided that the School Board may suspend or remove the employee for cause as provided by law.
At all times material to this case, Scallan knew or should have known of his responsibility under the School Board's ethics policy and relevant state rules to refrain from offensive sexual innuendo in the workplace.
In addition, as a supervisor, Scallan was obliged to apprise and train his staff annually with regard to the ethics policy, and other School Board policies.
Scallan did not take this training responsibility seriously. Instead, he regarded it as "the school district's way
of making sure they've legally complied with some requirements." Scallan limited his enforcement activity to collecting employees' signatures annually on a form in which employees acknowledge awareness of district policies then in place.
Scallan also failed to take seriously his responsibility to refrain from offensive sexual innuendo in the workplace.
On September 5, 2003 one of Scallan's employees filed a formal complaint concerning Scallan's use of offensive sexual innuendo in the workplace. Following an internal investigation, Scallan was suspended with pay. The School Board thereafter decided to terminate his employment, effective November 10, 2003.
At hearing, the School Board proved by a preponderance of evidence that Scallan engaged in offensive sexual innuendo in the workplace on at least eleven occasions in the presence of at least seven employees, as follows:
Tiffany Barton:
At the time of the hearing, Tiffany Barton (Barton), a graduate of California State University with a degree in business administration, was employed by the School Board as an accountant. She was hired in 2002 to work as an internal auditor, with Scallan as her direct supervisor.
February 14, 2003 (Valentine’s Day) fell on a Friday. Various employees made small talk throughout the day about their holiday plans.
Barton inquired of Scallan how he and his wife celebrated Valentine’s Day. Scallan responded by stating that [she] gives him a “blow-job,” and left immediately thereafter. Scallan flatly denied making this comment, but his denial is not credited. Barton was shocked and embarrassed, and brooded about the comment over the weekend.
The following Monday, Barton reported the exchange to a co-worker, Jeanie Pilgram (Pilgram), expressing her embarrassment and concern.
Weeks later, Scallan overheard Barton and a co-worker, Scott Woody, discussing the publicity surrounding the musical group Dixie Chicks and their semi-nude appearance on the cover of a national magazine. The word "buxom" was used to describe one of the singers.
Scallan interjected himself in the conversation, commenting to the effect that "if you look up the word ‘buxom’ in the dictionary you will see Tiffany’s picture."
Barton reasonably viewed the "buxom" comment to be an escalation of his Valentine's Day vulgarity in that Scallan had now personalized the physical appearance in a sexual context of a celebrity with a reference to Barton's body. Barton reasonably believed that such an analogy was inappropriate to the employer- employee relationship.
Barton expressed her offense to Scallan, but Scallan persisted, insisting his remark was a compliment. Barton "[tried]
to kind of give him a subtle hint like this is off limits. My boss should not be talking about my body." The subtlety was lost on Scallan.
On the evening of a conference in Jacksonville, Scallan advised Barton that "whatever would happen in Jacksonville stays in Jacksonville." Barton reasonably interpreted this comment as encouragement to "get wild, have some fun, do whatever in your off hours while you're away from home, whatever happens there, nobody is going to come back and talk about it," including, presumably Scallan himself, who was also scheduled to attend the conference.
April 23, 2004, was Barton's wedding anniversary. Her co-workers, including Scallan, were aware of the occasion and that Barton had arranged a baby-sitter, dinner reservations, and inquired of her colleagues regarding a beach upon which they could take an after dinner walk. The following day, Scallan asked of Barton, Did you get lucky?”
In addition to directing inappropriate comments toward Barton, Scallan directed unwanted attention toward her. For example, co-op student Kelly Chamberlin (Chamberlin) was disturbed--reasonably so--by Scallan's references to Barton in a high pitched voice saying, "oh Tiffany, oh Tiffany." Chamberlin felt this was "just not right."
In late August 2003, Barton was preparing to transfer from Scallan's department to her current position, where she works for Linda Lewis (Lewis), a former friend and employee of Scallan's
about whom more will be said below. Again, Barton was subjected to sexual innuendo in violation of School Board policy.
Specifically, Scallan remarked on Barton's ’s “great cleavage" and further commented that she was an "attractive person," adding that he liked working with attractive people. Scallan further stated that he was sure Lewis had selected Barton for Barton's analytical skills.
So far as Barton is aware, the comments set forth in paragraph 24 were not heard by third parties. Yet, the following morning, Scallan, in the presence of other members of his department, stated that "while lying in bed the night before" thinking about what he had said about [Barton's] cleavage, he had determined that he should apologize. He went on to state, as he had to Barton privately, that he liked working with attractive people; that she [Barton] was attractive; and that she was very analytical which is undoubtedly why Lewis wanted her for her department.
Later that week, Scallan encountered Barton in a break room lunching with a colleague. He approached, put his hand on her shoulder, and again made comments about Barton being missed, her analytical skills, and why she had been hired by Lewis. Barton interrupted, hoping to head off a third round of comments about her attractiveness.
On August 27, 2003, Barton confronted Scallan in his office explaining how upset she had been because of his comments that had occurred not only that week but during her previous
months of employment. Scallan acknowledged the impropriety of his comments, stating that he sometimes likes to say things for "shock value."
Barton thereafter spoke with district officials about filing a formal complaint. Barton was encouraged to, and did, take the Labor Day weekend to consider whether she wanted to proceed on a complaint. Following discussion with her husband, she decided to do so.
Linda Lewis:
At the time of the hearing, Lewis was director of payroll and benefits accounting. Beginning in 1990, she served for ten years in internal auditing, reporting to Scallan.
From 1990 through the birth of her first child in 1996, Scallan and his wife were close, social friends with Lewis and her husband.
Over the course of their friendship, Lewis wearied of her boss' inability to maintain boundaries in the workplace. When her first child was born, she took advantage of this event to end her social relationship with her boss. Scallan, however, continued to make comments to Lewis or in her presence regarding the sexual activities of other people, as well as comments regarding Lewis’ physical appearance and the appearance of others. Around the time of President Clinton's impeachment and trial in the United State Senate, Lewis brought a dress to the office to loan to a co-worker. Scallan asked Lewis if it were her "Monica Lewinsky dress."
Susan Reed:
Susan Reed (Reed) has served as Scallan's secretary for six years and worked for the district for 16 years. Her demeanor under oath significantly undermined, if not entirely discredited, Scallan's efforts to characterize Barton, Lewis, and others as a willing audience for his sexual innuendos.
In particular, Reed was present for the incident in which Scallan described Barton as buxom and was aware of its upsetting effect upon Barton. She also heard the "Monica Lewinsky" comment, and at least two references to the cleavage of co-workers, including Lewis'.
On occasion, Reed attempted to warn Scallan that his comments could be construed as sexual harassment, but for the most part, she kept silent because she reasonably believed that she had no power to change her boss' propensity to engage in offensive sexual innuendo.
Elizabeth Cole:
In August 2003, Elizabeth Cole (Cole), a student at the University of West Florida, commenced employment as a co-op student. She remains in a similar position today. As a new employee, Cole was required to obtain an ID badge. Scallan arranged to take her by car to the building where the IDs were made.
In the course of doing so, Scallan made gratuitous references to the woman who makes the IDs, noting her appearance in general and more specifically her "boob job."
Cole was not uncomfortable, and observed that the woman was provocatively dressed. She regarded Scallan's comments as inappropriate and "odd," coming from a man [her] "father's age." In her words, ". . . that's my supervisor that I'm riding in a car [with] to get my ID badge, only being there a week, it seemed inappropriate to me."
Debbie Fussell:
From 1997-2002, Debbie Fussell was employed in Scallan's department as an internal auditor.
Fussell heard Scallan make the "Monica Lewinsky" comment, as well as frequent comments about clothes worn by women in the building.
Scallan remarked in Fussell's presence upon women whose skirts were so short that if one were to follow them up the stairs it would be possible to look up their skirts.
Scallan also made what he believed to be jokes about Fussell’s having an affair with a School Board member.
Fussell neither invited nor appreciated the foregoing comments, but because Scallan was her direct supervisor, she did not risk his ill-will by specifically telling him to stop. Instead, she found, "It was just easier to laugh it off."
By way of defense, Scallan offered testimony from witnesses who said he had not been inappropriate towards them, such as principals whose schools were scheduled for routine audit.
One such witness volunteered that she had witnessed Scallan being inappropriate towards another woman.
The strongest support for the School Board's case came from Scallan's own testimony.
Although he denies the "blow-job" comment, he confirmed significant details provided by Petitioner’s witnesses. Taken together, they discredit Scallan's portrayal of himself as a victim, lulled into the belief that his conduct was not offensive because his subordinates did not complain.
For example, referring to Barton, he noted, ". . . I've never had somebody sit in my office that upset before over something I said to them. . . . I kept saying I am so sorry that I've hurt your feelings this way. It was not my intent."
Scallan also corroborated Cole's account of the ID incident, characterizing his behavior toward the co-op student as benign and helpful. In Scallan's account of the event, ". . . I don't want [Cole] to be offended when you see her, . . . she's rather large breasted. I think she's had a boob job. I
don't want you to be shocked when you see her."
Scallan's admitted fixation on appearances--particularly the appearance of female co-workers--enhanced the credibility of Petitioner's witnesses and underscored the reasonableness of the School Board's requirement that sexual innuendo be prohibited in the workplace.
Apart from Scallan's self-serving opinion, there is no evidence that any of Scallan's employees who witnessed or were the subject of his sexual innuendo were willing participants.
Although not every subordinate was upset by every sexually inappropriate comment Scallan made, the record as a whole fully supports the School Board's position that Scallan's subordinates kept silent because they reasonably believed that he was in a position to retaliate against those who objected to his sexual innuendo.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding.
§§ 120.569, 120.571(1), and 1012.33(1), Fla. Stat.
The Petitioner has the burden of proving by a preponderance of the evidence that it has just cause to terminate Respondent’s employment. Petitioner has fulfilled its burden.
Petitioner contends that the incidents relied upon by the School Board in support of its decision to terminate
". . . even if they are all true, do not amount to the type of misconduct that warrants the termination of a 27 year employee with an otherwise unblemished record."
To the contrary, the School Board reasonably requires all its employees to refrain from sexual innuendo in the workplace. Scallan's repeated decisions to subject subordinates
