vs.
Respondent.
) Case No. 04-1912
Pursuant to notice, a formal hearing was held in this case on November 17, 2004, in Fort Myers, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: J. Paul Carland, II, Esquire
The issue is whether Petitioner, the Lee County School Board, may terminate Respondent, Lyle Kehn's, employment as a custodian based upon the conduct alleged in the Petition for Termination of Employment.
On May 1, 2004, the Lee County School Board (the "School Board") served a Petition for Termination of Employment (the "Petition") on Respondent, setting forth the allegations justifying the termination of Respondent's employment as a custodian. On April 29, 2004, prior to service, Respondent contacted counsel for the School Board via e-mail to contest the charges and request a hearing. On June 1, 2004, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge and the conduct of a formal hearing.
On July 27, 2004, the School Board filed a motion to amend the Petition to add matters revealed during the course of discovery. On August 5, 2004, Respondent filed a motion in opposition to the motion to amend. By Order dated August 9, 2004, the School Board's motion to amend the Petition was granted.
This matter was scheduled for final hearing on August 25 and 26, 2004. On August 18, 2004, the School Board filed a motion for continuance, due to damage caused by Hurricane Charley. The motion was granted by Order dated August 20, 2004, and the matter was re-scheduled for hearing on November 17
and 18, 2004. On October 29, 2004, Respondent filed an unopposed motion to cancel the hearing on November 18, 2004.
The motion was granted, and the hearing was re-scheduled to proceed for one day only, on November 17, 2004.
S. B., a female student at Cypress Lake High School, and of
Respondent then asked S. B. whether she had heard the song, "Stacy's Mom." This song, popular at the time, was about a boy dating a girl named Stacy, but preferring "Stacy's mom," who's "got it goin' on." The boy happily recalls mowing the lawn for Stacy's mom, who came out with just a towel on to show him a spot he'd missed. S. B. stated that Respondent smiled and nodded when he asked her about the song. S. B. found
Respondent's question unsettling and ignored it, resuming her telephone conversation.
After ending her telephone call, S. B. left the control booth and went to the dressing room where she happened upon a female friend. S. B. and her friend walked out to the theater lobby. Respondent entered the lobby from the outside.
Respondent asked S. B. if she had talked to R. P. recently. S. B. and R. P. had ended their relationship in an acrimonious fashion the previous school year, as Respondent knew. S. B. answered, "Why would I talk to that asshole?" Respondent stated, "It's not his fault you're a slut," then laughed and began walking away. S. B. asked, "What did you say?" Respondent said, "You heard me" and walked away. S. B.'s friend shook her head and said, "Well, that was blunt."
By this time, other cast members began arriving for the show that evening. S. B.'s friend went to the dressing room with the others, while S. B. remained in the lobby looking at cast photos from previous shows. Respondent walked back into the lobby. S. B. asked Respondent what R. P. had told him about her, but he would not say. S. B. dropped a pencil and bent to pick it up. Respondent said, "I've heard you like to bend over."
S. B. walked into the theater, ending her interactions with Respondent. She testified that she never spoke to
Respondent again. She did not believe the matter was a "big deal" at the time because she was more focused on the opening night of her play. S. B. did not report the incident to the school administration.
On January 6, 2004, S. B. and a friend were looking for a three-ring binder that her friend had lost before the winter break. They asked John Hein, another custodian at Cypress Lake High School, whether he had found the binder.
Mr. Hein told them that he had not seen a binder, but suggested that they ask Respondent, the evening custodian. S. B. said, "You mean the pervert?" In response to Mr. Hein's obvious confusion, S. B. stated that "everyone" knew that Respondent was a pervert and that he was "always making remarks to students."
On the same date they were made, Mr. Hein reported
S. B.'s comments to Rochelle Thimlar, an assistant principal at Cypress Lake High School.
On January 9, 2004, Ms. Thimlar called S. B. to her office to discuss the situation. Ms. Thimlar had S. B. make a written statement. In her statement, S. B. briefly recounted the remarks that Respondent made to her and stated that Respondent looked at pornographic magazines with R. P., her former boyfriend.
Ms. Thimlar forwarded S. B.'s statement to the school's principal, Tracy Perkins, who proceeded to call R. P.
to her office. R. P. made a statement in which he admitted to bringing "inappropriate literature" to school and to sharing that literature with Respondent. R. P. stated that he and Respondent would joke around about "sexual humor."
At his July 2004 deposition and again at the hearing,
R. P. clarified that the "inappropriate literature" consisted of three magazines containing photographs of people engaged in sex acts. R. P. testified that Respondent looked at the magazines with him and that Respondent in no way voiced an objection or attempted to confiscate the magazines. To the contrary, Respondent asked R. P. whether he and S. B. engaged in the sex acts depicted in the magazines. R. P. testified that he would not have shown these magazines to any other adult. Finally,
P. testified that he was not aware of S. B.'s statement to Ms. Thimlar at the time he made his statement to Ms. Perkins.
On February 2, 2004, Ms. Thimlar asked S. B. to write a more detailed statement, preparatory to initiating a formal investigation of Respondent. This statement was consistent with the testimony recounted above. Ms. Thimlar then commenced efforts to contact S. B.'s mother to determine whether the student and her parents would cooperate with an investigation. On February 23, 2004, Ms. Thimlar finally spoke with S. B.'s mother, who stated that she wanted action taken immediately to remove Respondent from the campus.
A formal complaint regarding Respondent's conduct was sent to Denise Phillips-Luster, the director of Equity and Recruitment for the School Board, on February 24, 2004. On the same date, the School Board suspended Respondent, with pay and benefits, pending the outcome of the formal investigation.
In accordance with School Board policy and the SPALC Agreement, Ms. Phillips-Luster conducted the investigation and prepared an investigative summary of her findings. On March 18, 2004, a predetermination conference was held to allow Respondent to respond to the allegations. Prior to the predetermination conference, Respondent was provided a copy of the investigative summary. Respondent and his mother attended the predetermination conference and were each given an opportunity to speak and set forth Respondent's side of the story.
Respondent denied knowing S. B. and denied every particular of her story. At the hearing in this matter, Respondent reiterated his denial. He testified that he cleans the Black Box at the end of his shift and would never have been there as early as S. B. alleged.
As to the incident with R. P., Respondent testified that R. P. tended to hang around after school, trying to sneak into the band rooms to practice while he waited for his ride home. Respondent's job was to lock down the area to clean it. One afternoon, Respondent found R. P. in one of the band rooms
eating and reading a magazine at the podium in the front of the room. Respondent told R. P. to leave the room. R. P. obeyed Respondent, but left his magazines on the podium. Respondent saw that they were pornographic magazines and took them to his supervisor.
By letter dated April 28, 2004, from Georgianna McDaniel, the School Board's personnel director, Respondent was notified that probable cause had been found to believe the allegations were true and that a recommendation would be forwarded to the School Board that Respondent's employment be terminated.
The Petition was served on Respondent on May 1, 2004.
As initially served, the Petition alleged only the facts concerning the incident with S. B. At the time, the incident with R. P. was considered collateral to the main investigation because the investigators knew only that R. P. had shown Respondent "inappropriate literature" of some nature. The investigators believed that R. P.'s role, if any, would be to corroborate S. B.'s statements. It was only at R. P.'s deposition, taken July 26, 2004, that the School Board learned that the "inappropriate" material consisted of pornographic magazines containing photographic depictions of sex acts. This deposition caused the School Board to file a motion on July 27,
2004, to amend the Petition to include the charges related to Respondent's actions with R. P.
Respondent has been reprimanded, warned, or cautioned for his behavior on at least eight previous occasions. On April 27, 1998, he received a letter of caution regarding comments and actions toward a female co-worker that could be interpreted as "suggestive," if not "sexual harassment," as alleged by the co-worker. On January 8, 2001, Respondent received a letter of reprimand for inappropriate, suggestive remarks to a female night school student.
On four other occasions, Respondent has been reprimanded for inappropriate remarks and/or behavior toward co-workers, including a June 7, 2000, reprimand for discriminatory remarks he made to and about Spanish-speaking co-workers. Respondent denied making the remarks, despite the contrary statements of multiple witnesses.
In the instant case, given Respondent's denial that he looked at pornography with R. P. or that he had ever even met
B., the main question is the credibility of the witnesses.
The story related by S. B. was credible, and no reason was presented at the hearing as to any motive she would have to invent her story. She barely knew Respondent, had no desire to press the case against him, and had nothing personal to gain by testifying against him. She did not think the incident was a
"big deal" at the time and said little or nothing about it to her friends or parents. She did not complain to school officials. Rather, her off-the-cuff statement to another custodian that Respondent was a "pervert" caused the assistant principal to call her in for a conference. S. B.'s testimony concerning the incident with Respondent on opening night of "All The World's A Stage" is credited. Respondent's contrary testimony is not credible.
Likewise, R. P. had no motive to invent a story about Respondent. In fact, given R. P.'s rancorous break-up with
S. B. and the continuing animosity between them, his natural motive would more likely be to support Respondent and, thereby, put the lie to his former girlfriend's story. Further, R. P. appeared genuinely to like Respondent and was reluctant to testify against him at the hearing. Nevertheless, R. P. admitted looking at pornographic magazines with Respondent, as detailed above. R. P.'s testimony is credited. Respondent's contrary testimony is not credible.
CONCLUSIONS OF LAW
The Division has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes (2004).1/
The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen
v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
Subsection 1012.40(2)(b), Florida Statutes, provides that educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."
The SPALC Agreement provides that any discipline "that constitutes a reprimand, suspension, demotion or termination shall be for just cause." SPALC Agreement at Section 7.09. The SPALC Agreement does not define "just cause" or provide for a plan of progressive discipline.
In a previous case, the School Board adopted the following Conclusions of Law, which is hereby adopted as the rule for the instant case:
27. The School Board construes "just cause" in [then] Section 7.094 of the SPALC Agreement in the same manner as that phrase is used in Section 1012.33 relating to instructional staff. That statute provides in pertinent part that:
Just cause includes, but is not limited to, the following instances, as defined by rule
of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
Section 1012.33(1)(a). See also Rule
6B-4.009 (defining the terms used in Section 1012.33(1)(a)).
Lee County School Board v. Simmons, Case No. 03-1498 (DOAH July 15, 2003)(adopted in toto by Final Order dated August 12, 2003).
Florida Administrative Code Rule 6B-4.009(3) provides:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Florida Administrative Code Rule 6B-1.006(3) provides, in relevant part:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination. . . .
The School Board met its burden to prove that it has "just cause" to terminate Respondent's employment for misconduct in office. Respondent engaged in inappropriate conduct with two students while he was employed as a custodian by the School Board. His sexually-tinged conversations with S. B. clearly exposed her to unnecessary embarrassment. If these conversations did not constitute sexual harassment, they certainly fell far short of a reasonable effort to protect S. B. from such harassment or from conditions harmful to her mental health or safety. Respondent's viewing of pornography with
R. P. and his lascivious commentary thereto, also constitute misconduct in office. As an adult employee of the School Board, Respondent had a duty to make reasonable efforts to protect
R. P. from conditions harmful to his mental health or safety, not to participate in the harmful activity with the student.
The facts proven in this case might be cited as just cause for a lesser form of discipline, such as a suspension coupled with counseling, directed at reforming Respondent's behavior toward students and co-workers. However, given Respondent's long history of reprimands and warnings for his inappropriate behavior, including two previous reprimands for sexually suggestive remarks to females, the School Board was fully justified in deciding to terminate Respondent's employment after concluding its investigation of this matter.
RECOMMENDED that Petitioner, the Lee County School Board, issue a final order that terminates Respondent, Lyle Kehn's, employment.
DONE AND ENTERED this 21st day of February, 2005, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2005.
1/ All references to Sections and Chapters are to the 2004 compilation of the Florida Statutes. All references to Rules are to the current version of the Florida Administrative Code.
Dr. James W. Browder, III Superintendent of Schools Lee County School Board 2055 Central Avenue
Daniel J. Woodring, General Counsel Department of Education
J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue
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.
