The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact Background The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. 1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and S.M., were unavailable, and that their deposition testimony, included within the School Board’s Exhibit No. 12 and Respondent’s Exhibit Nos. 16 through 18, could be received in evidence in lieu of their live testimony. The School Board hired Respondent in 2010 as a teacher at Campbell Drive K-8 Center ("Campbell Drive"), a public school in Miami-Dade County. During the 2016-2017 and 2017-2018 school years and at all times relevant to this case, Respondent was employed at Campbell Drive as an intensive reading teacher pursuant to a professional services contract. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The alleged conduct giving rise to the School Board’s proposed suspension and termination of Respondent occurred during the 2016-2017 and 2017-2018 school years. Allegations Involving K.S. The School Board alleges in paragraph 10 of the Notice of Specific Charges that during the 2016-2017 school year Respondent made grossly inappropriate physical and verbal sexual contact with K.S. At the time of the alleged conduct, K.S. was a female 12-year-old student in Respondent’s seventh-grade intensive reading class. Specifically, paragraph 10 of the notice alleges: During the course of the school year, beginning sometime after the Winter Recess, he would touch her private area over her clothing. On one day during lunch, the Respondent requested that this student come to his room during lunch to make up a test. When she arrived in the room, the Respondent initiated physical sexual contact with the student. In addition to touching the girl beneath her clothes, the Respondent exposed himself to her and had her touch his private area. After the brief encounter, the girl exited the room. During the course of the school year the Respondent also asked her to engage in sexual acts and made sexual comments to her. The School Board further alleges in paragraph 10 of the notice that during the 2017-2018 school year, when K.S. was a student in Respondent’s eighth grade intensive reading class, "Respondent requested a sexual favor from [K.S] on a small note that he had handed her." At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with K.S. 2 K.S.’s Written Sworn Statement to Detective Webb On March 2, 2018, K.S. was interviewed by Detective Steven Webb, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. That same day, K.S. gave a written sworn statement to Detective Webb, received into evidence as Respondent’s Exhibit No. 11. In this sworn statement, K.S. stated that during the 2016-2017 school year, Respondent "became sexually active with students, he did multiple things." K.S. went on state that Respondent: started off by touching my private area and then he advanced a couple of days later by pulling his pen[n]is (sic) out and grabbing my hand and, placing it there. One day he sent a student to get me from the cafeteria and on the pass it stated that I had to make up a test, but when I entered his class he rubbed my breast, and started to suck them for about 10 to 15 seconds, and then I pushed him away. He was dropping my grade until I did the things he wanted me to do with him which is to have sex, give him head, thing of that nature. Recently, about 2-3 weeks ago he asked me to do things with him and that’s a reason to why I left early recently. 2 K.S. did not complete her seventh-grade school year at Campbell Drive. Before the school year ended, the principal of Campbell Drive asked K.S. to leave the school because of disciplinary problems involving physical altercations with other students and defiant behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she completed her seventh-grade year. K.S. did not attend Villa Prep Academy for very long because she was dismissed from that school during the early part of her eighth-grade year. In December 2017, K.S. re-enrolled in Campbell Drive. Upon her return, K.S.’s mother requested that she be put in Respondent’s classroom and K.S. was a student in Respondent’s eighth-grade intensive reading class for the remainder of the 2017-2018 school year. There was nothing mentioned in K.S.’s written sworn statement about Respondent engaging in any inappropriate conduct toward K.S. while she sat at her desk in Respondent’s classroom. K.S.’s Audio Recorded Interview with Detectives Webb and Ochoa In a subsequent audio recording interview of K.S. on March 2, 2018, by Detective Webb and Detective Gil Ochoa, received into evidence as the School Board’s Exhibit No. 5, K.S. initially described the cafeteria pass incident as follows: K.S. stated she left the cafeteria with her food tray in hand and went to Respondent’s classroom. Upon entering Respondent’s classroom, she began telling him things about her family. K.S. stated Respondent then took away her food tray, set the tray down, and pulled her over to another area of the room, at which time he touched her breasts over her shirt, lifted up her shirt and sports bra, exposed her breasts, and sucked on one of her breasts for about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and that is all he did that day. K.S. failed to mention anything about Respondent pulling out his penis on this occasion until asked specifically about it by Detective Ochoa near the conclusion of the interview. School Board’s Ex. 5 at 13:22. K.S. then stated that she saw his penis, but she was scared and looked away. K.S. made no mention of Respondent placing her hand on his penis. During this interview, K.S. went on to describe another occasion in Respondent’s class that occurred after school was dismissed for the day. According to K.S., on this particular occasion, Respondent asked her "to give him head" and "to have sex with him." However, according to K.S., it never happened. K.S. further stated that recently (two to three weeks ago), Respondent asked that she "give him head." There was no mention in this interview of Respondent touching K.S.’s vaginal area or dropping her grades. The entire audio recorded interview lasted approximately 15 minutes. At the conclusion of the interview, K.S. was asked if there was anything else that she remembered that she wanted to add. K.S. declined and she did not state any other alleged inappropriate physical and verbal sexual contact by Respondent. K.S.’s Testimony at Hearing At the final hearing, K.S. testified that toward the beginning of the 2016-2017 school year, Respondent moved her seat next to his because she was easily distracted by the other students and failed the first test. Subsequently, the following exchange occurred between counsel for the School Board and K.S.: Q: Now, during that school year, did Mr. Rizo ever do anything inappropriate to you during class time? A: Yes. Q: All right. Can you explain to the Judge what he would do to you? A: He would, like, walk by, ‘cause since I was sitting so close to him, he would just touch me, like, my private areas or he’ll just, like go down on my arm, like that. Stuff like that. Q: All right. Now, this would occur during class time? A: Yes. Q: When specifically--was there a specific time that it would occur during class time? A: Mainly when we were testing or doing our work. T. Vol. 1, pp. 28-29. Counsel for the School Board went on to question K.S. about the testing process and Respondent’s efforts to curtail students cheating on tests. K.S. testified that students placed raised stapled manila folders on their desks to prevent students from seeing each other’s tests. Counsel for the School Board then asked K.S., in leading fashion: "So it was this time, during the testing, when he would touch you? K.S. responded: "Yes." Id., Vol. 1, pp. 29-30. However, K.S. could not describe the number of times "this occurred" during the 2016-2017 school year. Moreover, this alleged inappropriate touching supposedly occurred while 20 to 25 other students were in the classroom. At hearing, K.S. testified at one point that Respondent’s touching of her vaginal area occurred every time they had tests, but she acknowledged that the raised stapled manila folders were not always present on the students’ desks during testing. At hearing, K.S. further acknowledged that had the inappropriate touching occurred as she testified to, any student at any point could have looked and seen Respondent caressing her in her vaginal area. Counsel for the School Board then inquired of K.S. if there was "ever anything more serious that [Respondent] did to [her]" that school year (2016- 2017). In response, K.S. described the alleged cafeteria pass incident as follows: A: I was in lunch--because I was in seventh grade at the time, seventh grade goes to lunch before anybody, and he sent one of his eighth grader students with a pass to go to get me. Because in order to leave the lunchroom, you have to have a pass. Security didn’t let you leave the lunchroom. Security called me and told me that my teacher was calling me to make up a test. When I got in the room, I had my tray in my hand, and he took my tray, put it down, he exposed himself. And then there was a corner and he, like, put me in the corner and he sucked on my breast. T. Vol. 1, pp. 32-33. However, moments later, K.S. described the incident differently: First he pushed me to the corner, and then after he sucked my breast, then he exposed himself. And then I was just scared. And he--when he exposed himself, he grabbed my arm and he made me touch his area, and then I grabbed my tray, I threw it away, and then I left. Id. at p. 33. According to K.S., she was in Respondent’s classroom on this particular occasion between five or ten minutes. The corner of Respondent’s classroom is located right next to the door entering the room. K.S. testified that the incident occurred with just Respondent and K.S. in the classroom, but with the other student who had retrieved K.S. from the cafeteria still waiting outside the door when K.S. left Respondent’s classroom. At hearing, counsel for the School Board also asked K.S., in leading fashion, whether she ever told the police officers that Respondent would "suck on your breasts or try to have sex with you multiple times?" In response, K.S. testified: "I told them--I told them the suck on my breast part, when he exposed him. And then when they asked about my eighth-grade- year, I told them how he wrote on a sticky note that I want to give him head, like oral sex …." Inconsistently, K.S. testified in her deposition that Respondent wrote on the sticky note: "Can I eat her?" According to K.S. in her deposition, Respondent picked up the sticky note, showed it to K.S., and she grabbed it from him and threw the note away. School Board’s Ex. 11, p. 11. At hearing, K.S. testified that Respondent handed her the sticky note and that she then threw it away. K.S. and Respondent never communicated by telephone, text, e-mail, or social media. There are no witnesses to any of the alleged incidents. K.S. never reported any alleged inappropriate conduct by Respondent to her parents, a teacher, or school administrators. However, at hearing, K.S. testified she told V.S.C. about Respondent’s conduct toward her during the 2016-2017 school year when V.S.C. came to her house on a single occasion sometime during K.S.’s eighth grade school year. Allegations Involving V.S.C. The School Board alleges in paragraph 11 of the Notice of Specific Charges that during the 2017-2018 school year, Respondent also made inappropriate comments to V.S.C. during his role as an afterschool care supervisor, and that he would "bump up against" V.S.C., "rubbing himself on her buttocks area." V.S.C. was not a student in Respondent’s classroom. The alleged inappropriate conduct occurred while V.S.C., a female 14-year-old eighth grade student at Campbell Drive, attended the school’s Students with a Goal ("SWAG") afterschool program. SWAG is an outdoor program where students can engage in a variety of recreational activities. Respondent was one of six school staff members that participated in the program. At any given time, there were approximately 100 students in attendance. Students could play soccer, basketball, football, dodge ball, board games, or do homework. Students could freely rotate through the different activities by simply notifying the adult conducting the desired activity. Respondent primarily engaged in soccer, but would occasionally participate in other activities. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with V.S.C. V.S.C.’s Audio Recorded Interview with Detective Bernice Charley On March 6, 2018, V.S.C. was interviewed by Detective Bernice Charley, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. An audio recording of the interview was received into evidence as the School Board’s Exhibit 8.3 During the interview, V.S.C. stated that while she and Respondent were at SWAG during the 2017-2018 school year, Respondent told her he wanted to slap her face with his penis; he asked her if she liked it rough (referring to sex); and he told her his penis was his "third leg." According to V.S.C., she and Respondent would engage in a verbal "back and forth," and he would say these comments in front of other students at SWAG. Additionally, V.S.C. stated she and Respondent would "bump" into each other at SWAG. According to V.S.C., Respondent would bump into her side or back from behind. During the interview, V.S.C. stated she had a bad memory. V.S.C. was reluctant to speak and there were many long pauses by her after questioning by Detective Charley. After much prodding and requests by Detective Charley for V.S.C. to "open-up," V.S.C. actually stated: "There’s nothing to talk about because nothing did happen." School Board’s Ex. 8, at 38:48-38:52. After further pauses, prodding, and requests by Detective Charley for V.S.C. to "open up," V.S.C. stated that Respondent also touched her breasts one time while they were at SWAG. According to V.S.C., this incident occurred with her shirt on. The School Board argues in its proposed recommended order that V.S.C. also described another incident while she and Respondent were at his classroom. According to V.S.C., Respondent was standing at his desk and V.S.C. was standing in the doorway, at which time Respondent stated to V.S.C.: "me and you here and now," followed by Respondent tapping on his desk. V.S.C. interpreted this comment as meaning that Respondent wanted 3 The audio recorded interviews of K.S. and V.S.C. (School Board’s Exhibits 6 and 8) are contained on a thumb-drive accompanying the School Board’s written exhibits received into evidence at the hearing. to have sex with her. According to V.S.C., other students were present when Respondent allegedly made the comment. Notably, this alleged incident is not referred to in the Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. The entire recorded interview lasted approximately 52 minutes. Much of the interview involved Detective Charley’s repeated efforts to redirect V.S.C. and her attempts to have V.S.C. "open-up." V.S.C.'s Testimony at Hearing At the final hearing, V.S.C. could not even remember whether she was in seventh or eighth grade during the 2017-2018 school year. In any event, V.S.C. testified that during the 2017-2018 school year, she attended Campbell Drive and the afterschool SWAG program. Respondent and V.S.C. did not have much interaction in the SWAG program. V.S.C. testified that she did not really participate in any of the SWAG activities; rather, she would either just "hang-out with [her] friends or sleep," or watch her friends and Respondent play soccer. However, most of V.S.C.’s time was spent sleeping near a tree, far away from where Respondent spent most of his time with the soccer group. When asked if Respondent ever did anything inappropriate to her during the SWAG program, V.S.C. testified that he talked about his "private part" to her, saying that "it was big," and referring to it once as "his third leg." Counsel for the School Board then asked V.S.C. in leading fashion: "Okay. Did he ever mention anything that he would like to do with his private part," to which V.S.C. responded, "I don’t remember. I just know that he talked about it once." T. Vol. 1, p. 82. V.S.C. described unspecified things that Respondent allegedly said to V.S.C. as "playful, like, in an inappropriate way," and "weird." Counsel for the School Board then asked V.S.C. in leading fashion: "Do you remember telling these things that he would say to you to the police at a given point," to which V.S.C. responded, "I barely remember. It’s, like, such a long time ago now." Id. at p. 83. As with her recorded interview with Detective Charley, V.S.C. was reluctant to testify at hearing and there were many long pauses by her after questioning by the School Board’s counsel. After further prodding and requests by the School Board’s counsel to describe "the things he would say to you, other than his talking about his private part," V.S.C. described the aforementioned verbal incident in Respondent’s classroom. On cross-examination, V.S.C. acknowledged this comment was loud enough so that other students could hear it and that she read a sexual connotation into the comment. Id. at p. 97. Counsel for the School Board again asked V.S.C. if Respondent ever made any other comments to her during SWAG, to which V.S.C. responded, "I can’t remember." Id. at p. 85. Subsequently, the following exchanges occurred between counsel for the School Board and V.S.C.: Q: Did he ever threaten to slap you with anything?" A: Yeah, with his penis. Q: What did he say? A: He said he wants to, like, slap me in the face with his penis. Q: And when did he say that? A: I think in SWAG. Yeah, it was in SWAG. * * * Q: Do you remember Mr. Rizo touching you in any other way other than bumping you with his hip or anything like that? A: When we would play fight, he would, like, put his pelvis, like, on my back area. Q: What would he do with his pelvis? A: He would just, like, be there, like, behind me and play fighting me. Q: Did he ever try to touch you sexually in any way? A: I guess, yeah, if he’s doing that, if he’s behind me like that. Id. at pp. 87 and 92. V.S.C. never reported any alleged inappropriate conduct by Respondent to her parents, teachers, or school administrators. At hearing, V.S.C. acknowledged that she and K.S. were friends. At hearing, V.S.C. admitted that she and Respondent were never alone during the SWAG program and that she was always close to the other students. At hearing, nothing was mentioned about Respondent touching V.S.C.’s breasts. Allegations involving N.E. In paragraph 12 of the Notice of Specific Charges, the School Board alleges that "Respondent also made sexual advances and over the clothing sexual contact with a third female student [N.E.] during the 2017-2018 school year." However, N.E. did not testify live at hearing and the School Board did not present any eyewitness testimony in support of the allegations. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with N.E. Ultimate Findings of Fact At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of Respondent is credited and is more persuasive than the testimony of K.S. and V.S.C., which is not credited or persuasive. Notably, K.S.’s and V.S.C’s versions of the events as set forth in their statements to the police and testimony at hearing were vague, differed in key respects, and much of their testimony and statements to the police were obtained through patently leading questions. Moreover, V.S.C. admitted that her memory is bad and that "there’s nothing to talk about because nothing did happen." It is also inconceivable that K.S. would have returned to Respondent’s classroom for intensive reading during the 2017-2018 school year had the alleged conduct during the 2016-2017 school year actually occurred. Had the alleged incidents occurred as testified about by K.S. and V.S.C., who were friends, it is also expected that there would have been eyewitnesses. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in inappropriate physical and verbal sexual contact with K.S., V.S.C., or N.E., as alleged in the Notice of Specific Charges, and Respondent did not engage in conduct with K.S., V.S.C., or N.E., which constitutes misconduct in office or immorality.4 4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing. However, an audio statement and a written statement purportedly authored by N.E., both of which are hearsay, were received into evidence at the final hearing as the School Board’s Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative proceedings, this does not necessarily mean that the undersigned must use the hearsay in resolving a factual issue. The statements cannot be used as the sole basis to support a finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore, the statements do not supplement or explain other non-hearsay evidence. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). At hearing, the parties stipulated to the receipt into evidence of N.E.’s deposition testimony in lieu of her live testimony. Even if the audio statement and written statement could be used by the undersigned, however, the audio statement, written statement, and deposition testimony would not be given any weight based on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension and termination of Respondent, Oscar D. Rizo, and reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.)
Findings Of Fact 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. 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. 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. 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. 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.
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
The Issue The issue is whether Respondent should be dismissed from his employment with Florida A & M University, as proposed in a termination letter dated August 19, 1999.
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: In this employee termination case, Petitioner, Florida A & M University (FAMU), seeks to terminate the employment of Respondent, Calvin C. Miles, Jr., on the ground that he sexually harassed three female students and retaliated against two students in violation of Rule 6C3-10.103, Florida Administrative Code. Because FAMU is a part of the State University System, the Board of Regents was also identified as a Petitioner. Respondent has denied all allegations. FAMU has a non-discrimination policy and harassment complaint procedure codified in Rule 6C3-10.103, Florida Administrative Code. Paragraph (6)(b) of the rule prohibits sexual harassment while paragraph (11)(a) prohibits retaliation. Respondent was subject to this policy and procedure, and on August 26, 1998, he signed a paper indicating that he had read and understood the same. On August 22, 1997, Respondent was hired as General Manager of WAMF, a radio station owned and operated by FAMU and which employed a number of FAMU students. Whether he was considered a non-instructional or instructional employee is not clear. In any event, the station had been without a full-time manager "for a while," and Respondent was told to come in and "put in place some policies and format . . . and move the station in the direction that [FAMU] thought it should go." He was also told that the station should be operated as a teaching facility. FAMU agrees that some of Respondent's decisions in implementing these directives "caused some people to bristle." Respondent's immediate supervisor was Dr. Hawkins, Director of FAMU's Division of Journalism. As such, Dr. Hawkins was required to prepare Respondent's annual evaluations. The first evaluation was prepared on September 29, 1998, and was transmitted to Respondent with a letter of the same date. In his letter, Dr. Hawkins concluded that Respondent's "first year here has been a mixed bag." While he acknowledged that Respondent had "turned up the level of professionalism at the station substantially and in rather quick fashion," he noted other matters of concern. Among these was a concern that at least three female students said that you had made inappropriate remarks to them. While none of these students have filed a complaint, I believe I have a responsibility to mention them now. In addition to the comments of these students, other female students have said that they just plan to stay away from the station so they do not have to be bothered. This is not the climate we want. This letter placed him on official notice that some female students perceived his conduct towards them as offensive and having an improper sexual connotation. In response to his evaluation, Respondent wrote Dr. Bryant a lengthy letter dated October 22, 1998. As to the allegations of sexual misconduct, Respondent "strongly suggest[ed] that the University conduct a thorough investigation of all complaints of this nature." During his tenure with FAMU, Respondent had two or three meetings with the Dean of the School of Journalism, Media, and Graphic Arts, Dean Ruggles, and his immediate supervisor, Dr. Bryant, regarding the foregoing complaints of sexual misconduct. Respondent was urged to use "extreme caution," to reassess his behavior with female students, and warned that "if these allegations were taken to the complaint stage" by a student and found to be substantiated, there would be severe consequences. In addition, on at least one occasion, Respondent met with the Director of FAMU's Office of Equal Opportunity Programs regarding a complaint by another student. Therefore, it is fair to infer that Respondent was well aware of on-going accusations being made against him, and that he should be extremely cautious in his behavior around female students. After formal complaints of sexual harassment were filed by three female students in February 1999, FAMU's Office of Equal Opportunity Programs conducted an investigation. On May 11, 1999, the President of FAMU notified Respondent that the findings of the investigation revealed that Respondent had violated Rule 6C3-10.103, Florida Administrative Code, and that FAMU intended to terminate his employment. Respondent then availed himself of the right to have an "investigatory interview" by a University Personnel Committee on July 13, 1999. When the committee determined that no new facts had been presented, Respondent was dismissed from employment effective August 26, 1999. This appeal ensued. Although the termination letter does not identify the specific allegations which form the basis for the termination, in a Joint Prehearing Stipulation filed by the parties, FAMU has alleged that Respondent "engaged in conduct and actions toward[s] [Symphony] Parson, [Deanna] McKinley[,] and [Jackeline] Pou that rose to the level of sexual harassment in violation of Rule 6C3- 10.103(6)(b), Florida Administrative Code." FAMU further alleged that Respondent "exhibited behavior towards Ms. Parson and Ms. Maria Williams, a witness in this matter, that rose to the level of retaliation as set forth in [Rule] 6C3-10.103(11)(a), F.A.C." However, there was no evidence regarding retaliation against Maria Williams, who was not a witness in this case, and that portion of the charges has been disregarded. Parson, McKinley, and Pou testified at the final hearing, and although Respondent disputed the accuracy of their allegations, their testimony has been accepted as being the most persuasive on these issues. Findings with respect to those allegations are set forth below. Deanna McKinley Deanna McKinley (McKinley) enrolled at FAMU in the fall of 1996 and was a senior at the time of hearing. On September 1, 1998, McKinley began working at WAMF and hosted an Inspirational Gospel Morning Show using the on-air name of "Deanna Devine." Respondent was her supervisor. Throughout her employment at the radio station, McKinley felt "uncomfortable" around Respondent. This was because he would stare at her breasts, always place his hands on her shoulders when speaking to her, squeeze her shoulders, touch her hand in the Disc Jockey (DJ) booth, and stand extremely close to her while the two spoke. She was especially uncomfortable "being in the same studio with him, because the studio was in a different part of the building, it was locked, it was dark, [and] usually [she] was the only one there." Although she disliked Respondent's conduct and on occasion had told him that she disapproved of it, McKinley was under the impression that unless she tolerated Respondent's actions, she would not be allowed to continue as a DJ or "make progress" at the station. Besides the foregoing conduct, Respondent made personal remarks of a sexual nature to McKinley. For example, when she would bend over, he would say something like "Don't bend over like that, you will get someone excited." He also made a comment about how "adorable" and "kissable" she was, and that if he were her man, he "would just kiss [her] all the time." Once, when McKinley remarked ". . . little old me?", Respondent stared at her breasts and replied "Nothing on you is little, Deanna. But that's all right. It's all good." In January 1999, McKinley accidentally dropped something on the floor in the studio and bent over to pick it up. Respondent again stated "You should not bend over like that, Deanna, you may get someone excited." This latest incident triggered a decision by McKinley to leave the radio station. It is fair to infer from the evidence that McKinley perceived the radio station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 1, 1999, McKinley submitted her letter of resignation to the radio station. On February 11, 1999, she filed a complaint with FAMU's Office of Equal Opportunity Programs. Symphony Parson Symphony Parson enrolled at FAMU in the fall of 1997 with a major in broadcast journalism. She began working at WAMF that same year as a music director and on-air personality. Respondent was her supervisor. In April 1998, and while on duty at the station, Parson was taking a telephone message for the station secretary late one afternoon when Respondent came up behind her and began rubbing her shoulders and then moved his hand onto her breast. She told him to stop, "cursed him," and then left the station. In November 1998, Parson was in the station "writing on the file cabinet" when Respondent came up behind her and "brushed up against her" rubbing his shoulders against her. She again "cursed him out." A month later, he repeated the same conduct. According to Parson, she felt "violated" and "horrible" whenever this conduct occurred. Respondent also engaged in inappropriate conversations with Parson when she was on duty at the station. For example, he asked her if she was having sex with her boyfriend, and he told her how "cute" and "sexy" she was. These conversations made her feel extremely uncomfortable and led Parson to try to avoid Respondent whenever possible. At the same time, however, Parson felt that she had to tolerate this conduct to keep her position at the station. It is fair to infer from the evidence that Parson found the station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 8, 1999, Parson filed a charge of sexual harassment against Respondent with the Equal Opportunity Office. A few days later, Respondent was placed on administrative leave. When he returned to his office to clean out his personal items, he passed by Parson and said "You're dead." Parson reported this to the police, was forced to get a cell phone out of fear for her personal being, and asked her parents to temporarily move into her apartment. Jackeline Pou Jackeline Pou (Pou) enrolled in FAMU's journalism program in August 1996. She began working at WANF in September 1997. Respondent was her supervisor. While working at the station, Respondent would sometimes brush his body against Pou or touch her shoulders, which made her feel uncomfortable. Almost on a daily basis, he would make comments about how pretty she was or make comments about her "eyes". When he spoke to her, he would stare at her breasts. Once, she observed him staring at her "behind when [she] was walking away." In the summer of 1998, and just after Pou finished speaking on the telephone with a friend, Respondent asked who she was speaking with. When Pou responded "It's none of your business," Respondent said, "It couldn't have been a guy or the seat would have been wet." Respondent's conduct made Pou feel intimidated and uncomfortable, and she disliked being alone in the radio station with Respondent during the evening hours. Besides creating a hostile work environment, such conduct also unreasonably interfered with Pou's educational performance and ability to work at the station. On February 11, 1999, Pou filed a complaint of sexual harassment against Respondent with FAMU's Office of Equal Opportunity Programs. Respondent's contentions Respondent has steadfastly denied all allegations of sexual misconduct since they first surfaced in 1997 or 1998. At hearing, Respondent contended that he was an unpopular figure among the students due to his strong disciplinary measures. While this may be true, it does not justify his actions towards McKinley, Parson, and Pou. He suggested that McKinley's complaint was motivated by her displeasure with his disciplinary measures and failure to obtain her a parking pass. Respondent further suggested that Parson bore him ill-will after he demoted her to a different position at the station. He also contended that out of revenge, the three women met and conspired to file false complaints in an effort to have him removed from the station. Finally, Respondent suggested that each of the complainant's testimony was full of inconsistencies and lacked specificity as to certain dates and times. These contentions have been considered by the undersigned and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A & M University enter a final order confirming the dismissal of Respondent as an employee. DONE AND ENTERED this 29th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 29th day of August, 2000. COPIES FURNISHED: Bishop C. Holifield, General Counsel Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Avery D. McKnight, Jr., Esquire Ruth N. Selfridge, Esquire Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Calvin C. Miles, Jr. 501 Blairstone Road, Apartment 123 Tallahassee, Florida 32301
The Issue The issue to be determined is whether Respondent, Alexander Roy, is guilty of violating section 1012.795(1)(d), (f), (g) and (n), Florida Statutes (2011). If violations are found, the appropriate penalty must be determined.
Findings Of Fact Respondent holds Florida Educator Certificate 1035877, covering the areas of mathematics, middle grades integrated curriculum, and social studies, which is valid through June 2015. At all times material to the allegations in the Administrative Complaint, Respondent was employed by the St. Lucie County School Board (SLCSB) as a mathematics teacher at Manatee Elementary School, also known as Manatee K-8 School. On or about January 13, 2012, Respondent was arrested in Osceola County, Florida, as the result of allegations that Respondent used an internet provider and “knowingly persuaded, induced, enticed and coerced an individual who had not attained the age of eighteen years, to engage in sexual activity.” The allegations were based on the probable cause affidavit of Kevin Kulp, Special Agent for the Florida Department of Law Enforcement, who worked on the undercover operation giving rise to Respondent’s arrest, which stated that Respondent contacted a person on-line that he believed to be the mother of a 13-year-old girl in order to have sex with both the mother and the daughter. The “mother” and the “daughter” were undercover police officers. As a result of Respondent’s arrest, a search warrant was executed to search Respondent’s residence in St. Lucie County, Florida. According to Detective Longson, the search revealed that Respondent possessed approximately 75-100 images of minors engaged in explicit sexual conduct. The analysis of the information seized at Respondent’s home also included photos and videos of a teenage girl, approximately 16 years old, engaged in explicit sexual acts with Respondent. On January 17, 2012, as a result of his arrest, Respondent was placed on temporary duty assignment at his home. On or about March 5, 2012, Respondent was charged by indictment with one count of Enticing and Attempting to Entice a Minor to Engage in Sexual Activity in violation of 18 U.S.C. § 2422(b), and four counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A Superseding Indictment containing the same charges was filed May 31, 2012. On March 27, 2012, he was suspended without pay by the SLCSB because of the federal criminal charges against him. On April 10, 2012, Respondent was terminated from his employment by the SLCSB, based upon his inability to report for work because of his imprisonment. On or about June 15, 2012, Respondent was tried in federal court before a jury. He was found guilty of all five counts. On September 12, 2012, United States District Court Judge K. Michael Moore adjudicated Respondent guilty on all five counts, and sentenced him to life in prison as to Count 1, and 120 months of incarceration as to each of Counts 2 through 5, with the penalty for all five counts to be served concurrently. Upon release, Respondent is to be placed on probation for life, a condition of which is to comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901. et seq.), as directed by the probation officer, the Bureau of Prisons, or any state sex offender agency in a state in which he resides, works, is a student, or was convicted of a qualifying offense. Also included in the Special Conditions of Supervision are that Respondent may not possess or use any computer, with the exception of pre-approved use in connection with authorized employment; that Respondent shall not have personal, mail, telephone, or computer contact with children under the age of 18; that Respondent shall not be involved in any children’s or youth organization; and that Respondent shall participate in a sex offender program. Respondent’s arrest, prosecution, and conviction were covered by the media, in the newspaper and on the radio, television, and internet. Respondent’s conviction significantly impairs Respondent’s effectiveness as a teacher in the community. Respondent’s certification is for middle school grades. The prohibition from having contact with children under the age of 18 makes it impossible for him to hold employment as a teacher in the public school system. As stated by Maurice Bonner, the Director of Personnel for St. Lucie County Schools, “[t]here is absolutely no way that the students and the parents and the community would have any faith in him being alone in a classroom with kids even for one minute. And he would not be able to effectively be in a classroom. Or be on campus, period, where there are children present.” His testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of all four Counts in the Amended Administrative Complaint and permanently revoking his certification. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2013. COPIES FURNISHED: David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuniak Springs, Florida 32435 Alexander Roy, Register # 99238-004 United States Penitentiary Post Office Box 24550 Tucson, Arizona 85734 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner committed the offenses alleged and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Everett S. Rice, Sheriff of Pinellas County, is a constitutional officer for the State of Florida, responsible for providing law enforcement and correctional services within Pinellas County, Florida. As a result, Respondent maintains and operates a correctional facility, commonly referred to as the Pinellas County Detention Center, or Pinellas County Jail (Jail). Petitioner, Marco Bertone, is a detention deputy employed by Respondent at the Jail and has been so employed for approximately nine years. Detention deputies are correctional officers and, as is the case with all detention deputies, Petitioner is responsible for the care, custody, and control of inmates incarcerated at the Jail. At all times relevant hereto, Petitioner was a detention deputy with the PCSO. On March 1, 1997, Petitioner was assigned to the position of recreational officer in the section of the Jail known as the 2-F Wing. In connection with that assignment, Petitioner’s job responsibility was to oversee jail inmates engaging in exercise activities. As recreational officer, Petitioner occupied an office adjacent to the recreation yard (rec yard). The recreation office contained windows that allowed the deputy occupying the office to observe the recreational activities of the inmates. On March 1, 1997, George Robinson, an inmate at the Jail, was transported to the 2-F Wing of the Jail to engage in recreational activities. Upon arrival at the 2-F Wing, Inmate Robinson entered the rec yard adjoining the recreation office occupied by Petitioner. While in the rec yard and for no apparent reason, Inmate Robinson became disruptive and began engaging in loud verbal outbursts. Although Petitioner ordered Inmate Robinson to stop shouting, Inmate Robinson refused to do so and began repeatedly throwing a basketball against the window of the recreation office. After Inmate Robinson failed to comply with Petitioner’s orders, Petitioner called for an escort officer to return Inmate Robinson to his assigned housing area. Escort officers are detention deputies working at the Jail who are assigned the specific task of moving inmates within the facility. In response to Petitioner’s request, three escort officers arrived at the 2-F Wing. Detention Deputy Michelle Piazza (Piazza) was the first to arrive, and was followed shortly thereafter by Detention Deputies Trudy Kallis (Kallis) and Clarence Skinner (Skinner). Each had heard Petitioner’s request for an escort officer and responded to the call. After the arrival of the escort officers, Petitioner exited the recreation office and, using his key, unlocked the door to the rec yard. As the recreation officer, Petitioner also had the option of opening the rec yard door from inside the office, without the necessity of exiting the office and accessing the rec yard from the hall. Upon opening the door to the rec yard, the escort officers did not enter the rec yard to obtain custody of Inmate Robinson. Instead, Inmate Robinson was requested to exit the rec yard and he complied. After exiting the rec yard, Inmate Robinson continued shouting at Petitioner. During his verbal attacks directed toward Petitioner, Inmate Robinson claimed that he had engaged in sexual acts with Petitioner's mother and/or sister. Petitioner responded to Inmate Robinson’s verbal attacks by shouting instructions to Inmate Robinson to quiet down and return to his cell. Petitioner’s responses to Inmate Robinson also included references to sexual acts that Petitioner claimed to have engaged in with Robinson’s sister and/or mother. The verbal responses by Petitioner directed toward Inmate Robinson did not calm the inmate, but appeared to aggravate him and to escalate the ongoing verbal confrontation. Piazza took control of Inmate Robinson, and with the assistance of Skinner, escorted Robinson to an elevator a few feet from the rec yard. Piazza, believing the inmate was under control, told Petitioner that his assistance was not required and that he should return to his office. Despite Piazza’s directing Petitioner to return to his office, Petitioner did not immediately return to his assigned post, the recreation office. Instead, Petitioner followed Inmate Robinson and the escort officers down the hallway to the elevator. When the elevator door opened, Kallis entered the elevator and stood beside the control panel. Kallis remained at this position to ensure that the elevator door remained open until Inmate Robinson, Skinner, and Piazza were inside. Piazza then immediately escorted Inmate Robinson into the elevator. As she did so, both Inmate Robinson and Piazza faced the back wall of the elevator and their backs were toward the elevator door. Skinner followed Piazza and Inmate Robinson into the elevator. While being escorted into the elevator, Inmate Robinson continued to be verbally aggressive toward Petitioner. Although Inmate Robinson continued to be verbally aggressive, he did not resist or engage in threatening or violent acts. As Piazza was escorting Inmate Robinson into the elevator and after being directed to turn facing the elevator door, Inmate Robinson quickly lunged toward Petitioner who had been behind him. During the time Inmate Robinson was being escorted into the elevator, Petitioner remained in the hallway and was turning away from the elevator to return to the recreation office when he suddenly noticed, within his peripheral vision, Inmate Robinson move quickly toward him. In response to Inmate Robinson’s move toward him, Petitioner went into the elevator to defend himself. In the seconds that followed, Inmate Robinson threw punches at Petitioner, landing several blows to Petitioner's head and face. Kallis, Skinner, and Piazza remained in the elevator during the altercation. Petitioner admitted taking swings at Inmate Robinson, but contends that his actions were not done maliciously or with the intent of hitting the inmate. This is consistent with the credible testimony of Detention Deputy Piazza, a nine-year employee of the Pinellas County Sheriff’s Office. Piazza observed that Petitioner took a stance against Inmate Robinson only after the inmate lunged toward him. Based on Piazza's observation of the altercation, Petitioner appeared "controlled" and was “trying to defend [himself] and get a hold of the situation.” Finally, in light of her experience and training as a deputy, Piazza believed that because Petitioner was much shorter than Inmate Robinson, Petitioner had to reach over in order to successfully defend himself. As a result of blows landed by Inmate Robinson, Petitioner sustained two bumps above his eye and bruise marks on the right side of his face. After the altercation in the elevator, Inmate Robinson had a small scratch on his left cheek. However, it is unclear how Inmate Robinson sustained this scratch, since no one present during the struggle saw Petitioner land a blow to the inmate. During the brief struggle between Petitioner and Inmate Robinson, Kallis used her body to keep the elevator door open and called for assistance on her radio. Initially, while in the elevator, Skinner and Petitioner took control of Inmate Robinson. However, at some time prior to or while exiting the elevator, Skinner and Piazza had control of Inmate Robinson. Thereafter, Skinner and Piazza maintained control of the Inmate Robinson; they moved him down the corridor; and Skinner placed him against the wall. Almost immediately thereafter, in response to Kallis' call, Detention Deputies Jason Moyer (Moyer) and Gary Schaff (Schaff) reported to the area. Upon their arrival, Moyer and Schaff observed Skinner struggling with and attempting to control Inmate Robinson, who was standing against the corridor wall. Moyer immediately took control of Inmate Robinson’s right arm while Schaff took control of Inmate Robinson’s left arm. Skinner then handcuffed Inmate Robinson. When Moyer and Schaff arrived in response to the call for assistance, Petitioner was not with Skinner and Inmate Robinson, but was in the corridor in the vicinity of the rec yard and recreation office. Ultimately, Inmate Robinson was transported by Moyer and Schaff to the medical unit at the Jail to be examined. While being transported there, Inmate Robinson became disruptive. As a result thereof, Moyer and Schaff took Inmate Robinson to the ground in order to restrain him. Shortly after the arrival of Moyer and Schaff, Sergeant Beverly George-Williams, Petitioner's supervisor, came to the scene. After determining that the situation was under control, Sergeant George-Williams accompanied Petitioner to the medical clinic at the Jail to have his injuries examined. While going to the clinic, Sergeant George-Williams briefly obtained Petitioner’s version of the events and instructed Petitioner to complete an incident report. Similarly, the other detention deputies on the scene were expected and required to prepare incident reports. Completion of these reports by the deputies was necessary to facilitate Sergeant George-Williams' preparing the use of force report required in an incident of this nature. Pursuant to Sergeant George-Williams' instructions, Petitioner completed an incident report. In his incident report, Petitioner stated that after Inmate Robinson exited the rec yard, Petitioner, Skinner, and Piazza proceeded toward the north elevator. Noting that Inmate Robinson was “loud and agitated,” Petitioner reported that in an attempt to de-escalate the situation, he attempted to leave the area. Moreover, the report noted that as Petitioner turned to go to the recreation office, he noticed, out of his peripheral vision, Inmate Robinson coming toward him in an aggressive manner. According to Petitioner's report, after lunging toward Petitioner, Inmate Robinson threw several punches at Petitioner. The report also stated that these punches struck Petitioner in or near the eye two times with the inmate's closed fist. In his incident report, Petitioner further stated that after being struck by Inmate Robinson, he and other detention deputies, directed Inmate Robinson to the floor. During these manuevers, Petitioner stated that he was kicked in the abdomen and again struck in the face by Inmate Robinson. Additionally, Petitioner's report noted that he assisted in stopping the attack by taking control of the Inmate Robinson around the mid-torso area; directing him to the floor; and maintaining the hold until assistance arrived. Shortly after the incident, other detention deputies completed incident reports. Piazza's incident report stated that as she and Skinner escorted Inmate Robinson toward the north elevator, Petitioner was behind her. Piazza further reported that “as I was escorting Robinson into the elevator, he quickly lunged towards Bertone striking him in the face.” Finally, Piazza stated that at this time "Skinner and [Petitioner] took control of Inmate Robinson.” In the incident report completed by Kallis on March 1, 1997, she stated that Inmate Robinson was aggressive and refused to return to his housing area. Kallis' report went on to state that at the time Piazza was escorting Inmate Robinson into the north elevator [Inmate Robinson] was still being extremely aggressive toward staff members. My view became blocked by D/D Skinner. I could still hear the inmate. But I could not see him. When I then had view again he was striking D/D Bertone in the head with a closed fist. It was impossible to assist at this time due to other staff members blocking me from the inmate. To clarify her incident report, Kallis prepared a supplemental memorandum. This memorandum was prepared later the same day that the incident report had been completed, March 1, 1997. In the memorandum, Kallis noted that upon her view being cleared by Skinner, she observed Petitioner throw "approximately 5 to 8 punches toward" Inmate Robinson, and saw Inmate Robinson throw 12 to 15 punches toward Petitioner. After reviewing all the incident reports relative to the events involving Petitioner and Inmate Robinson, Sergeant Beverly George-Williams, Petitioner's supervisor, determined that the reports were confusing. Moreover, it appeared to her that “no one was sure of what the other one did or what they did themselves.” Another supervisor, Lieutenant Kimberly Klein observed that there were inconsistencies among the incident reports. These inconsistencies involved where the incident occurred, and when and if Inmate Robinson was taken down to the floor. Furthermore, Lieutenant Klein found that none of the incident reports indicated that Petitioner had actually struck Inmate Robinson. The inconsistencies and perceived incompleteness of the incident reports concerned Sergeant George-Williams and Lieutenant Klein. These concerns caused both supervisors to consider whether some of the deputies completing the reports were being completely truthful. Thereafter, an internal investigation was conducted by the Administrative Inquiry Division (AID) of the PCSO pursuant to the referral by Lieutenant Klein. During this process, investigators took sworn statements of Inmate Robinson, Petitioner, and other deputies involved in this incident. While giving his sworn statement, Petitioner denied engaging in a verbal altercation with Inmate Robinson and initiating the altercation with Robinson. Rather, Petitioner asserted that he tried to de-escalate the situation by attempting to leave the area and return to the recreation office. Petitioner stated that Inmate Robinson lunged toward him while both were still in the hallway and that the altercation progressed from the hallway into the elevator, where he took Robinson to the floor while being kicked and struck by Robinson. Petitioner further stated that the persons involved in the altercation, including himself, rolled into the hallway where, while still on the floor, he regained control of Robinson and maintained that control until assistance arrived. In clarifying his earlier statement that he took Inmate Robinson to the floor, Petitioner explained that he pulled the inmate down toward the floor, and did not intend to convey in his earlier statement that Inmate Robinson was flat on the elevator floor. Petitioner's testimony in this regard is bolstered by that of Piazza, who testified that during the altercation, everyone in the elevator was “hunched over.” The reference to "everyone" included herself, Petitioner, Skinner and Inmate Robinson, as Piazza did not recall seeing Kallis in the elevator. The record in the instant case reflects inconsistencies in the incident reports as well as in the testimony. However, for the most part, these inconsistencies reflect the various and different perceptions of the events giving rise to the subject incident. These various perceptions are likely due to: (1) the very brief time frame in which the events occurred; (2) the rapid succession of the actions involved in the episode; and (3) the respective location, view, and responsibilities of the deputies at the time the various actions occurred. Furthermore, it is not insignificant that the entire series of events took place in a very confined area. The north elevator was only 6’5” x 5’2”; the doorway of the elevator was only about three feet from the doorway of the recreation office; and both the elevator and the recreation office were on the same side of the corridor. Notwithstanding the discussion in paragraph 36, the greater weight of the evidence established that Petitioner allowed himself to become embroiled in a verbal altercation with Inmate Robinson. Regardless of the comments and vulgar insults Inmate Robinson directed toward Petitioner, Petitioner's reaction of making similar vulgar comments to Inmate Robinson, did not constitute a good correctional practice. Moreover, such behavior is not consistent with the training or conduct expected of correctional officers. The role of correctional officers in a volatile situation is to calm the situation and to maintain control, not to act in a manner which aggravates or escalates the dispute. Similarly, by following Inmate Robinson and the other detention deputies down the hall and into the elevator, Petitioner departed from good correctional practice. Rather than heeding the warning and directive of Piazza to return to his post, Petitioner proceeded to follow Inmate Robinson and the escort officers down the corridor. Petitioner's actions in this regard, again, served only to escalate and aggravate the ongoing confrontation, rather than to calm the situation. It is improper for correctional officers to engage in altercations with inmates, and to do so violates good correctional practice and the training and requirements of correctional officers. The role of a correctional officer in an altercation is to engage in defensive maneuvers and to gain control of the inmate creating the disturbance. In the instant case, after Inmate Robinson lunged toward him, Petitioner attempted to use such maneuvers to defend himself and to gain control of the inmate and the situation. Truthfulness on the part of detention deputies is also an important part of their job. It is necessary in order to maintain discipline and to preserve the integrity of the facility and function performed. Petitioner was not truthful in that he denied having a verbal altercation with Inmate Robinson. Nor was Petitioner truthful about some of the comments that he made to the inmate during the verbal altercation. Based on Piazza'a report, it appears that for a brief time, Petitioner, along with Skinner had control of Inmate Robinson. However, Petitioner did not maintain control of the inmate until the response team arrived as he stated in his incident report. After completing its investigation, the AID presented its entire investigative file to the Chain of Command Board (Board) without conclusion or recommendation. Lieutenant Klein was among the officers sitting on the Board. The Board met and, after reviewing the materials provided by AID and giving Petitioner the opportunity to respond further, sustained the complaint. Specifically, the violations determined by the Board to have occurred were: Violation of Pinellas County Sheriff’s Office Civil Service Act, Laws of Florida 89-404, as amended by Laws of Florida 90-395, Section 6, subsection 4: conduct unbecoming a public servant; violations of the provisions of law or the rules and regulations and operating procedures of the Office of the Sheriff; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C-1,V,A,006, relating to truthfulness, a Level Five violation; Violation of rule and regulation of the Pinellas County Sheriff’s Office, C-1,V,A,021, relating to the custody of arrestees/prisoners, a Level Five violation; and Violation of rule and regulation of the Pinellas County Sheriff’s Office, C-1,V,C,067, relating to members' effectiveness in their assigned duties, a Level Three violation. Under the PCSO Guidelines, a sustained finding of two Level Five violations is the basis for assigning 60 disciplinary points. A sustained violation of one Level Three violation is the basis for assigning 15 disciplinary points. Consequently, Petitioner was assessed 75 disciplinary points. According to PCSO General Order B-15, the penalty range for a total point award of 75 points is from a 10-day suspension to termination. In the instant case, Petitioner was given the minimum discipline, a 10-day suspension without pay. Prior to the incident in this case, Petitioner has not been the subject of any other administrative investigations or disciplinary actions by the PCSO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County Sheriff’s Civil Service Board enter a Final Order: (1) finding Petitioner Bertone, guilty of engaging in conduct unbecoming a public servant and violating PCSO Rule C-1,V,A,006 and C-1,V,C,067; (2) dismissing the charge that Petitioner Bertone violated PCSO Rule C-1,V,A,021; and (3) suspending Petitioner Bertone without pay for eight days. DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997. COPIES FURNISHED: Marco Bertone, pro se 11999 113th Way North Largo, Florida 33778-2542 Keith C. Tischler, Esquire Powers, Quaschnick, Tischler, and Evans Post Office Box 12186 Tallahassee, Florida 32317 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, Esquire Pinellas County Sheriff’s Office Post Office Drawer 2500 Largo, Florida 33779-2500 William Repper, Chairperson Pinellas County Sheriff’s Civil Service Board Post Office Box 539 Clearwater, Florida 34617
The Issue The issue is whether Respondent, Duval County Public Schools (DCPS), violated the rights of Petitioner, Katherine E. Otto, under the Florida Civil Rights Act, chapter 760, Florida Statutes.
Findings Of Fact Ms. Otto filed a Complaint with FCHR, alleging race, sex, and age discrimination against DCPS, having been employed by the school district as a school teacher from December 2009 until September 2010. The Complaint alleges that Dr. Alvin Brennan, the principal of the Forrest High School, where Ms. Otto worked as a teacher: (a) announced at a staff meeting that he "prefers all black male young teachers"; (b) announced at another staff meeting that "anyone who takes off a Friday or a Monday . . . will be fired"; (c) verbally harassed Ms. Otto; and (d) discharged her for calling in sick. The face of the Complaint shows that it was signed by Ms. Otto on October 24, 2010 - only weeks after the last date of alleged discriminatory conduct on September 8, 2010. However, the "date stamp," which also appears on the face of the Complaint, shows that it was not received by FCHR until October 25, 2011. Notably, FCHR sent to DCPS a "Notice of Filing of Complaint of Discrimination" on November 10, 2011, which was stamped as received by DCPS on November 16, 2011. At the hearing, Ms. Otto could not explain the apparent delay of exactly one year and one day between the date she signed the Complaint and the date it was stamped as received by FCHR. Ms. Otto testified that she never actually typed the Complaint. Further, she stated the typed Complaint was inconsistent with a handwritten version she originally submitted to FCHR "a month or two before" October 24, 2010. Surmising at the hearing that "someone" at FCHR must have typed the Complaint, Ms. Otto testified that she signed and returned the document even though it showed that she was 11 years older than her actual age of 50 years. Ms. Otto's Petition for Relief contains accusations about harassment and "racists remarks" by Dr. Brennan, and adds that he and other DCPS personnel "committed purjery to [the Commission]" [sic] during its investigation of the Complaint. Unlike the Complaint, the Petition for Relief also states that Ms. Otto was "was fired for no reason" as opposed to being fired for calling in sick. At the final hearing, Ms. Otto testified that she did not know why she was fired, and it was only "possible" that she was fired due to her race, gender, or age. Ms. Otto testified that her Complaint and Petition were based on events in August and September 2010, shortly after Dr. Brennan became the principal of Forrest High School. By the end of the 2009-2010 school year, Forrest High School was identified as "critically low performing," having received consecutive "school grades" of "F" or "D" over the preceding school years. The District was, therefore, required to treat Forrest High School as a "turn-around school," and replace/"reconstitute" much of its staff and administrative team. Dr. Brennan, a veteran educator and administrator of 27 years, was selected by the superintendent to replace the principal at Forrest High School at the beginning of the 2010-2011 school year, since he had a successful track record for improving other low-performing schools. Dr. Brennan conducted various staff meetings just before and during the first two weeks of the school year. According to Ms. Otto, Dr. Brennan stated at one such meeting that anyone who took a Friday off would be fired. Ms. Otto testified that Dr. Brennan stated at another meeting that he prefers to hire young African-American men. Ms. Otto thereafter "felt like [she] was being harassed, discriminated against because [Brennan] was just going after white women." Despite these negative "feelings" about Dr. Brennan, Ms. Otto never made a complaint to the school district about him or his comments. Ms. Otto stated that she privately met with Dr. Brennan on only two occasions. During the first private meeting at the beginning of the 2010-2011 school year, Dr. Brennan "yelled" at Ms. Otto for speaking with state officials who visited Forrest High School due to its "turn•around" status. The second private meeting was on September 8, 2010, when Dr. Brennan purportedly "harassed" Ms. Otto for missing lesson plans, and "yelled" that she was fired. In the days leading up to the September 8 conference, Dr. Brennan and Assistant Principal Jeravon Wheeler visited Ms. Otto's class and warned her about missing lesson plans. At all times, Ms. Otto was aware that she was required to have lesson plans readily available in her class. During a scheduled classroom observation on August 31, 2010, Ms. Wheeler (once again) noted Ms. Otto's lack of lesson plans. A post-observation conference was to take place on Friday, September 1, 2010. There is conflicting evidence as to whether Ms. Otto was present on that date. The record contains a post-observation "teacher assessment instrument" which Ms. Otto apparently signed and dated on September 1, 2010. However, Ms. Otto claims to have called in sick after her observation and did not return to the school until September 8, 2010. When summoned to Dr. Brennan's office on the morning of September 8, 2010, Ms. Otto assumed he wanted to discuss her illness-related absence and her discussions with "people from the State." Ms. Wheeler also attended the September 8 conference with Ms. Otto and Dr. Brennan. Contrary to Ms. Otto's view, Dr. Brennan and Ms. Wheeler testified that the September 8 conference was actually called to: (a) discuss the classroom observation; present a "non-compliance letter" for Ms. Otto's repeated failure to provide lesson plans; and (c) place her on a "Success Plan" formulated to improve her overall teaching performance. Ms. Otto walked out of the September 8 conference before Dr. Brennan had the chance to provide her with the Success Plan and non-compliance letter. Dr. Brennan's contemporaneous handwritten notes on the non-compliance letter indicated that Ms. Otto abruptly quit during the September 8 conference and "walked off the job." Ms. Otto testified that she left the September 8 conference because Dr. Brennan was screaming at her and yelled that she was fired. She denied, however, that Dr. Brennan made any comments about race, gender, or age at that time. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan neither raised his voice nor stated that Ms. Otto was fired during the September 8 conference. Rather, according to Dr. Brennan and Ms. Wheeler, it was Ms. Otto who became indignant during the September 8 conference, and who abruptly quit and walked out of the school after "throwing" her district-issued laptop on the desk of Dr. Brennan's assistant. Ms. Otto testified that she ultimately submitted lesson plans at some point after her August 31, 2010, observation, though that was disputed by Dr. Brennan. Regardless, Ms. Otto admitted during the hearing that she was "unprepared" during Ms. Wheeler's observation and the lesson plans entered into the record which she purportedly prepared for the August 31 observation were incomplete and inadequate. Dr. Brennan and Ms. Wheeler concurred that the lesson plans presented at the hearing were defective. Ms. Otto testified that she contacted a lawyer with the teacher's union immediately after the September 8 conference. Ms. Otto thereafter learned that Dr. Brennan did not have the authority to unilaterally fire her. Nevertheless, Ms. Otto advised the union lawyer that she would not go back to the school in any event because she was "allergic to it." Ms. Otto testified that the union lawyer gave her assurances that she would be reassigned to another school. These and other statements purportedly made by the union lawyer amounted to hearsay and were not corroborated by other, independent evidence. Shortly after the September 8 conference, Ms. Otto received from the school district a letter dated September 9, 2012, which indicated its recognition of Ms. Otto's resignation and encouraged her to contact the sender (Ms. Dawn Gaughan) with any questions. Ms. Otto did not respond to the September 9, 2012, letter, assuming that the union lawyer was securing her another teaching position in a different school. Ms. Otto testified that she called in substitutes on the days immediately following the September 8 conference using the school district's automated telephone system. However, she also stated that the personal identification number she needed to access the system was invalid at the time of her departure from the school. Having lost faith in the union lawyer's assurances, Ms. Otto testified that she eventually spoke with the school district human resources' personnel about the September 8 conference, but could not remember when that occurred. Ms. Otto subsequently filed a claim for unemployment compensation which was rejected on the grounds that she voluntarily resigned from her position. However, an Unemployment Compensation Appeals Referee ultimately determined that Ms. Otto was entitled to compensation because (during a telephonic hearing on the matter) the school district presented inadmissible hearsay to debunk Ms. Otto's assertion that she had been fired. At the hearing, Ms. Otto presented the testimony of Ms. Judith Julian, who claimed that she was "forced to resign" due to harassment by Dr. Brennan and Ms. Wheeler. Ms. Julian stated that Dr. Brennan "harassed" her by forcing her to park in the teacher's parking area, and Ms. Wheeler harassed her by "following" Ms. Julian on campus during a phone call. Ms. Julian had "no idea" whether such "harassment" was motivated by any animus toward her gender, age, or race, and also commented that she was "replaced" by a male Caucasian. According to Ms. Julian, lesson plans: (a) are "absolutely" important; (b) should be available at all times; and are part of a teacher's contractual duties. Ms. Julian testified that the only personal interaction she had with Dr. Brennan was during a classroom observation when Dr. Brennan stated that she was "a great teacher." Ms. Julian stated that she never heard Dr. Brennan make statements about Ms. Otto's race, gender, or age. Ms. Julian did not attend and, therefore, could not comment on the September 8, 2010, conference. She did, however, recall statements purportedly made by Dr. Brennan at a staff meeting regarding a preference to hire African-American teachers. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan made no such announcement, though he did discuss the need for a staff which reflected the demographics of the community served by Forrest High School. Dr. Brennan also presented statistics showing that his hiring decisions had no appreciable impact on staff demographics at the high school. Rather, African-American staff members increased by only seven percent and the percentage of male teachers at the school actually decreased between the 2009-2010 and 2010-2011 school years. Regardless, the testimony and evidence of record show that school principals do not have unilateral authority to terminate a teacher. The testimony offered by Dr. Brennan and Ms. Wheeler was consistent with contemporaneous notes and statements they prepared in September 2010 as well as other written statements they later prepared for the School District's Office of Equity and Inclusion in November 2011. The collective bargaining agreement between the school district and the teachers' union, Duval Teachers United (DTU), stresses the importance of lesson plans and the expectation that teachers shall have them at all times. The agreement also provides that insubordinate conduct and failure to prepare lesson plans merit discipline up to and including dismissal. Further, the collective bargaining agreement also contains school district policies against harassment and directions on how to process complaints. Ms. Otto was aware of these policies and procedures, but never lodged any complaints against Dr. Brennan with school district officials. Based on the testimony and evidence of record, the greater weight of the evidence demonstrates that Ms. Otto resigned from her position during a September 8, 2010, conference with Dr. Brennan and Ms. Wheeler. Further, the evidence shows that Ms. Otto failed to provide timely and complete lesson plans despite several warnings from her superiors. This failure alone would support dismissal, as would Ms. Otto's insubordinate conduct or abandonment of her post. The Employment Complaint of Discrimination, filed with FCHR by Ms. Otto appears to be signed and dated by her on October 24, 2010, only 46 days after the last incident giving rise to her claim occurred. However, the date stamp from FCHR on that document is for October 25, 2011, more than 365 days after the September 8, 2010 incident. No explanation was given for this discrepancy in the dates on the complaint giving rise to this matter. Ms. Otto testified at the hearing that she "didn't care which way this case goes" and was "happy" just to be there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Katherine E. Otto's Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine E. Otto Apartment 407 7740 Plantation Bay Drive Jacksonville, Florida 32344 Katherine E. Otto 785 Oakleaf Plantation Parkway, Unit 814 Orange Park, Florida 32065 David J. D'Agata, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 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 28th day of September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue Whether Respondent, JR Conway Enterprises, LLC (Respondent), violated the Florida Civil Rights Act of 1992, section 760.10(7), Florida Statutes,1 by terminating Petitioner, Tina Garner (Petitioner), in retaliation for her reporting sexual harassment.
Findings Of Fact Respondent, JR Conway Enterprises, LLC, owns a number of businesses. Jeff Conway is Respondent’s managing member. Petitioner was hired by Respondent near the end of July 2018, to work as a bookkeeper doing payroll and accounts for Respondent’s real estate office known as Sunshine State Deals. In September 2018, Respondent opened a Smoothie King in the Spring Hill, Florida area. As the date for opening the Smoothie King grew closer, Petitioner took on more responsibilities and helped open and operate that store. Morgan Katocs was hired in September 2018 to work at the Smoothie King. Ms. Katocs was 17 years old at the time she was hired. Ms. Katocs brother, Hunter McGhee, was also hired to work at the Smoothie King. The Smoothie King store opened on September 18, 2018. Petitioner had no authority to hire employees for Respondent. Apparently, all hires to work at the Smoothie King were made by Brandon Berlinrut, who was a friend of Jeff Conway and recruiter for Respondent. While Petitioner had no hiring authority, during the time she worked at the Smoothie King, she supervised Ms. Katocs. As the Smoothie King was opening, there was work that needed to be completed. Respondent hired his friend, Constantine Tremoularis, as an independent contractor to install security cameras, work on the point of sale, and conduct various work at the location. Mr. Tremoularis was given access to areas at the Smoothie King store where only employees were permitted. While working at the Smoothie King, Ms. Katocs had physical limitations due to a back condition caused by a car accident. When Ms. Katocs requested assistance in lifting a mop bucket, Mr. Tremoularis responded, “I bet men like to say that they broke your back,” in a context inferring injury during sex. Ms. Katocs interpreted the comment as an unwelcome sexual comment and was offended and upset. Ms. Katocs reported the unwanted sexual comment to Ms. Garner within an hour after the comment was made. Later, while Petitioner was at Respondent’s real estate office, both Ms. Katocs and her mother called her on the telephone from the Smoothie King office and asked her to set up a meeting with Mr. Conway to discuss the unwanted sexual comment. They both expressed a desire for Petitioner to be present during the meeting. Ms. Garner told Mr. Conway of Ms. Katocs and her mother’s desire to have a meeting with him to discuss the unwanted sexual comment, and of their request that Petitioner be present at the meeting. Mr. Conway met with Ms. Katocs and Ms. Katocs’s mother on October 4, 2018, to discuss the incident. Mr. Conway did not invite Petitioner and Petitioner did not attend the meeting. Although he did not tell Ms. Katocs or her mother, the reason that Mr. Conway did not want Petitioner in the meeting is because he had already decided to terminate Petitioner’s employment for reasons unrelated to the reported unwanted sexual comment from Mr. Tremoularis. At the meeting, Ms. Katocs, her mother, and Mr. Conway discussed the unwanted sexual comment. During the meeting, Mr. Conway agreed to make changes and provide sexual harassment training for Respondent’s employees. On October 4, 2018, the day after the meeting between Ms. Katocs, her mother, and Mr. Conway, Mr. Tremoularis apologized to Ms. Katocs. Although he was allowed to stay at the Smoothie King location from several days to over a week to finish the job, Mr. Tremoularis made no further unwanted sexual comments to Ms. Katocs. On Saturday, October 6, 2018, Mr. Conway called Petitioner on the telephone and advised her that she was terminated. Mr. Conway terminated Petitioner because he perceived her as rude, argumentative, and combative. Mr. Conway also believed that Petitioner was responsible for hiring her daughter, Tina Rowlands, to work at the Smoothie King store even though Petitioner knew that Mr. Conway did not approve of the hire. Mr. Conway’s perceptions of Petitioner’s aberrant behavior were consistent with those observations reported by Karen Stapleton in her testimony at the final hearing. Karen Stapleton, who worked with Mr. Conway’s companies as a consultant and in accounting, worked with and helped train Petitioner at Respondent’s real estate office in September 2018. Ms. Stapleton also observed Petitioner scream at an employee at Respondent’s Smoothie King store. When Mr. Conway terminated Petitioner, he also terminated Petitioner’s daughter, Ms. Rowlands, as well as Petitioner’s daughter’s boyfriend, Jake Fryar. Although Mr. Conway approved of Jake Fryar’s hire, he decided to terminate Mr. Fryar as well because of his association with Petitioner and Petitioner’s daughter. Respondent’s decision to terminate Petitioner was made because of Mr. Conway’s perceptions about Petitioner’s combative behavior and Mr. Conway’s belief that Petitioner was responsible for hiring her daughter. Although in close proximity to the time of Petitioner’s termination on October 6, 2018, Mr. Conway had already decided to fire Petitioner prior to Petitioner’s report of the unwanted sexual comment made to Ms. Katocs and Mr. Conway’s meeting with Ms. Katocs and her mother to discuss the incident. As confirmed by the testimony of a locksmith, who was contacted on September 28, 2018, to change locks on Respondent’s offices and the Smoothie King store, Respondent’s decision to terminate Petitioner was made in late September 2018. Although the locks were not changed until October 6, 2018, the timing of the lock change request and Mr. Conway’s credible testimony confirm that the decision to terminate Petitioner’s employment was unrelated to her report of unwanted sexual comments. Following the October 4, 2018, meeting between Ms. Katocs, her mother, and Mr. Conway, Morgan Katocs continued her employment at the Smoothie King store until she voluntarily left at the end of December 2018. Ms. Katocs testified that she left Smoothie King because, in her view, nothing changed; she felt uncomfortable about remaining employed there, the promised sexual harassment training never occurred, and another employee was making inappropriate sexual remarks to other female employees. Ms. Katocs also did not like a manager that was hired after Petitioner was terminated, who, according to Ms. Katocs, was a bully and abusive. Ms. Katocs further testified that neither she, nor her brother, who was also employed at the Smoothie King, received negative repercussions from her report of the unwanted sexual comment from Mr. Tremoularis. Ms. Katocs’s brother remained employed at the Smoothie King until voluntarily leaving in April 2019.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S James H. Peterson, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Jeff Conway JR Conway Enterprises, LLC Post Office Box 15389 Brooksville, Florida 34604 William Sheslow, Esquire Whittle & Melton, LLC 11020 Northcliffe Boulevard Spring Hill, Florida 34608 Erik DeL'Etoile, Esquire DeL'Etoile Law Firm P.A. 10150 Highland Manor Drive, Suite 200 Tampa, Florida 33610
The Issue The issues in this case are: (1) whether Petitioner filed her complaint with the Florida Commission on Human Relations within 365 days of the alleged discriminatory event; and (2) whether Petitioner requested an administrative hearing within 215 days of the filing of her complaint.
Findings Of Fact Petitioner, Earlene Johnson, is an African-American. Prior to December 1996 Ms. Johnson filed a grievance when Respondent, Chautauqua Office of Psychotherapy and Evaluation (hereinafter referred to as "Chautauqua"), failed to promote her. On December 4, 1996, Ms. Johnson was terminated from employment with Chautauqua. At some time after her termination, Ms. Johnson engaged legal counsel with the intent of filing a complaint of discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Toward this end, Ms. Johnson signed an Intake Questionnaire and an Affidavit on October 30, 1997. No copy of the Intake Questionnaire or Affidavit was provided by the Commission to Chautauqua within five days of their receipt. On May 4, 1998, more than one year after the alleged acts of discrimination, Ms. Johnson was sent a Charge of Discrimination by Joe Williams, an Intake Counselor for the Commission. Mr. Williams instructed Ms. Johnson of the following in the cover letter which accompanied the Charge of Discrimination: In order for the Commission to proceed further with this matter, you must: Review the complaint; Sign the complaint in the designated spaces in the presence of a notary public; Return the signed complaint to this office in the enclosed self-addressed envelope. Because a complaint of discrimination must be filed within the time limitation imposed by law (in most cases the limitation is 365 days from the date of the alleged discriminatory act), I urge you to complete these three steps as soon as possible. . . . . Ms. Johnson signed the Charge of Discrimination sent to her by Mr. Williams on the date it was sent, May 4, 1998. Ms. Johnson's Charge of Discrimination was not, therefore, filed within 365 days of the date of the last act of discrimination alleged by Ms. Johnson: Ms. Johnson's termination from employment on December 4, 1996. When the Commission failed to complete its investigation of Ms. Johnson's Charge of Discrimination within a reasonable period of time, Ms. Johnson requested an administrative hearing by letter dated August 3, 1999. Ms. Johnson's request for hearing was made one day short of one year and three months after the Charge of Discrimination was filed with the Commission. The Commission filed Ms. Johnson's request for hearing with the Division of Administrative Hearing on September 14, 1999. Chautauqua filed a Motion to Dismiss Petition. An Order to Show Cause was entered after Ms. Johnson failed to respond to the Motion. Ms. Johnson was ordered to answer the following questions: Did the events that Petitioner believes constitute discrimination occur on or before December 4, 1996? If not, when did the events take place? Did Petitioner file a Charge of Discrimination with the Florida Commission on Human Relations on or about May 4, 1998 (a copy of a Charge of Discrimination which appears to have been filed by Petitioner is attached to this Order.) If not, when was it filed? If the Charge of Discrimination filed with the Florida Commission on Human Relations was filed more than one year after the events which Petitioner believes constitute discrimination occurred, why wasn't the Charge filed sooner. Petitioner should provide a detailed answer to this question. Ms. Johnson responded to the questions asked in the Order to Show Cause as follows: The events that petitioner believe [sic] constitutes discrimination occurred before and on December 4, 1996. Petitioner signed a complaint of Discrimination which was signed on October 30, 1997 which was filed by Petitioner's former Lawyer. Which a copy is attached [sic]. Petitioner's Lawyer filed a charge of Discrimination less than one year before the events which the Petitioner believes constitutes [sic] Discrimination. Which a copy is attached [sic]. Petitioner's former Lawyer [sic] address and phone number is [sic] attached. Attached to Ms. Johnson's response to the Order to Show Cause was a copy of an Affidavit and an Intake Questionnaire signed October 30, 1997, a letter dated January 10, 1998, from Ms. Johnson's legal counsel, and the May 4, 1998, letter from Mr. Williams asking Ms. Johnson to sign a Charge of Discrimination. It is clear from Mr. Williams' letter that no Charge of Discrimination was filed by Ms. Johnson with the Commission until more than 365 days after the alleged act of discrimination, December 4, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by Earlene Johnson. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 24th day of May, 2000. COPIES FURNISHED: Earlene Johnson 185 Cook Avenue DeFuniak Springs, Florida 32433 Robert P. Gaines, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
