Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
The Issue Did Respondent, Volusia County Schools (School Board), decline to renew the contract of Petitioner, Glen Collins (Mr. Collins), because of his age? Did the School Board unlawfully retaliate against Mr. Collins for protected activity?
Findings Of Fact The School Board is an employer as defined by section 760.02(7), Florida Statutes (2010),1/ the Florida Civil Rights Act. The School Board had policies and procedures in place during Collins' employment that prohibited the discrimination or harassment of any employee "on the basis of [that employee's] race, color, religion, national origin, sex, disability, marital status, political beliefs, sexual orientation, or age." The School Board provided these policies and procedures to all employees in the new employee briefing. The School Board also provided employees periodic training on the policies. Additionally, the policies and procedures were available to employees on the School Board's website and in employee handbooks. The School Board also operated a human resources department to help enforce the policies and answer employee questions or concerns about the policies. The School Board's anti-discrimination policy encouraged any employee who believed he or she had been subject to harassment on the basis of age to notify the equity officer, through use of a report form or orally, within 60 days of the alleged harassment. The School Board policies commit to promptly investigate any complaint(s) of harassment, whether formal or informal, verbal or written, and take appropriate action to prevent further harassment, including disciplining the employee violating its policy. The School Board also prohibited retaliation against any employee for reporting allegations of harassment or participating in an investigation, proceeding or hearing related to the alleged harassment. The School Board would take the appropriate disciplinary or other action against any employee found to be in violation of the policy. Mr. Collins worked for the School Board from August 28, 2006, until June 30, 2010. He began employment in the maintenance unit for the school system. The maintenance unit employees were responsible for repair and other maintenance of the School Board facilities throughout Volusia County. Russell Tysinger (Mr. Tysinger) hired Mr. Collins. In 2006, the School Board operated separate construction and maintenance departments. The maintenance department consisted of employees at two district offices, one in Daytona Beach and one in Deltona. Mr. Collins began work at the Daytona office. Mr. Collins was a skilled, diligent, and committed employee. Over the years he worked in several positions including Electrical Maintenance Supervisor for the East Side (of the County), Facility Mechanical Technician (FMT) Supervisor, and Trade Supervisor (Electric). In addition to performing all the duties of his various positions during his years of employment, Mr. Collins volunteered for additional duties and actively sought to identify and solve problems at the schools for which he was responsible. For instance, when a plumbing supervisor retired, Mr. Collins volunteered to assume the duties of that position. This permitted the School Board to save money by eliminating the position. The School Board recognized Mr. Collins' skills and dedication. It gave him additional duties and pay increases. The School Board does not claim that Mr. Collins' termination was for discipline or unsatisfactory work. In 2008, and in every year since, the School Board's revenue has declined. This has caused a decrease each year in the budget of the maintenance and construction department and other departments. When the School Board hired Mr. Collins, he knew that it faced financial difficulties and was likely to downsize. Mr. Tysinger, the maintenance unit's head, had to reduce costs, increase efficiency, and economize in both the materials and labor components of his budget. In 2008, he eliminated several vacant positions and did not fill positions created by retirements. In 2009, when the head of the construction unit resigned, the School Board consolidated the maintenance and construction units to save money. Mr. Tysinger became the head of the consolidated unit. The School Board eliminated the position filled by the former head of construction. In 2009, Mr. Tysinger faced a greater need to reduce costs, including labor costs. This year there were not enough retirements and vacancies to achieve the needed personnel cost savings simply by eliminating vacant positions. Mr. Tysinger laid off 12 employees from the newly consolidated unit, including five in supervisory positions. He reduced capital and material expenditures also. And he reinvigorated an energy conservation program to reduce utility costs. During the 2009-2010 time period, Mr. Tysinger also changed the maintenance shop locations from two (one on the east side of the county and one on the west side) to five distributed around the county. He did this to reduce the costs of the various tradesmen driving to the schools where they performed their tasks and to improve efficiency by having less driving time and more working time. These changes saved the financial equivalent of 33-full time equivalent positions and doubled the department's productivity. In July of 2009, Mr. Collins became an FMT supervisor, responsible for overseeing and assisting 11 FMTs. These duties were in addition to his duties as an electrical maintenance supervisor. On December 3, 2009, Mr. Collins executed an annual contract with the School Board for the 2009-2010 school year. The contract specifically provided that "[a]n Employee may be dismissed where the School Board through financial necessity for good cause shown deems it necessary to decrease the number of employees of the particular kind of service in which the affected Employee was engaged." The contract expired on June 30, 2010. In 2010, the School Board required Mr. Tysinger to cut approximately 1.8 million dollars from his personnel budget and four to five percent from his materials and supplies budgets. These further budget reductions required Mr. Tysinger to lay off 38 employees in the construction and maintenance division and take other cost-cutting measures. Mr. Tysinger conducted a rational analysis of employees and their skill sets to determine which employees he would have to let go in 2010. First, Mr. Tysinger identified all of the skill sets that he needed to have in the maintenance and construction unit. This included plumbing, electrical, and heating and cooling. He also determined how many employees with each skill set he needed. Then he identified the employees with the needed skills. After that, Mr. Tysinger reviewed the seniority of each employee in each group determined by the skill set groupings. He then determined who would be laid off by seniority, while ensuring that he maintained the skill sets needed and the number of employees he required with those skills. Using seniority as a factor helped ensure that the School Board retained the employees with the most experience with the School Board facilities and systems. Mr. Collins was one of the individuals let go. Mr. Tysinger advised Mr. Collins on May 27, 2010, that the School Board would not renew his contract in June when it expired. Mr. Collins was 52-years-old. The School Board's Maintenance and Construction unit retained employees older than Mr. Collins. For example, the School Board retained Mr. Ken Blom and Mr. Rick Jones, both of whom were older than Mr. Collins. During the period between May 27, 2010, and the end of the contract period, Mr. Collins' supervisor asked him to train Antonio Gutierrez in the job duties that Mr. Collins performed and inform Mr. Guiterrez about projects and activities underway. Mr. Gutierrez is younger than Mr. Collins. His age does not appear in the record. Mr. Tysinger retained Mr. Gutierrez because of his expertise with air conditioning units, because air conditioning was one of the largest problem areas, and because of his seniority. During the time period when he reduced the number of staff, Mr. Tysinger also reassigned employees to different locations and units to provide the needed distribution of skill sets at each location and in each unit. This process took several months. In this process, as an interim measure, Mr. Tysinger assigned Mr. Gutierrez to perform many of Mr. Collins' functions. Mr. Gutierrez did not replace Mr. Collins or permanently assume his duties. Mr. Tysinger reassigned the majority of Mr. Collins' duties to Mr. Blom. This included his electrical duties and supervision of some of Mr. Collins' former FMTs. He assigned Mr. Collins' plumbing responsibilities and some of his FMTs to Mr. Ford. And he assigned some of Mr. Collins' electrical responsibilities to Mr. McKinnon. The ages of Mr. Ford and Mr. McKinnon do not appear in the record. Mr. Collins' claim of age discrimination rests solely on his belief that Mr. Gutierrez assumed his job responsibilities. During his employment with the School Board, Mr. Collins identified maintenance problems at different schools, including Pine Ridge High School, over the years and reported them. Mr. Collins also discovered sealant was being improperly applied and raised concerns about this. Mr. Collins thinks that his identification of the problems embarrassed the supervisors responsible for the schools and that his termination was retaliation for identifying the problems. There is no persuasive evidence to support Mr. Collins' belief. There is no evidence that Mr. Collins opposed any practice that is unlawful under the Florida Civil Rights Act of 1992 (chapter 760, Florida Statutes), or that he made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the Civil Rights Act. Budget reductions required the School Board to reduce the number of employees in the construction and maintenance unit where Mr. Collins worked. Mr. Tysinger and the School Board did not consider Mr. Collins' age in deciding to end his employment. They also did not act because of any dissatisfaction with his good work identifying problems with the maintenance of the schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Collins' Petition for Relief. DONE AND ENTERED this 11th day of April, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 11th day of April, 2012.
Findings Of Fact Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984. He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980. The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about 15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent. During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch. At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal. In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class. Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight-A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended. Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting. Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal. One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students. Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students. Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle School obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
The Issue The issues in this case are whether Respondent, Linda Lindquist, committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, whether Respondent's teaching certificate should be suspended or otherwise sanctioned pursuant to Subsections 1012.795(1) and 1012.796(7), Florida Statutes.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 300763, covering the area of art. The certificate is valid through June 30, 2011. At all times pertinent to this proceeding, Respondent was employed as an art teacher at Pinecrest Elementary School in the Hillsborough County School District. Vicki R. Dotson has been the principal of Pinecrest Elementary School since July 1999. Prior to that time, she was the assistant principal at the school. Dotson was Respondent's supervisor during the years 1999 to the present. During the 1999-2000 school year, Respondent would arrive late for work and leave work early without permission. She was reprimanded for those indiscretions, but did not alter her behavior. The behavior continued throughout the 2000-2001 and 2001-2002 school years. During the 2000-2001 and 2001-2002 school years, Respondent failed to properly complete student referral forms and had to be frequently admonished about using proper classroom management techniques. She did not modify her management style. Respondent received an overall unsatisfactory evaluation during the 2001-2002 school year. An action plan was prepared by the school administration to assist Respondent during the 2002-2003 school year. Respondent yelled at and/or physically struck students during the 2002 school year. Her overall evaluation for the 2002-2003 school year was unsatisfactory. Respondent failed to provide lesson plans for a substitute teacher in 2002. In response to a request by the school principal that she do so, Respondent faxed a response saying, "Please use your full time art teachers [sic] sub plans. I'm sure they are excellent." The school board terminated Respondent's employment on or about October 27, 2003. Respondent appears to be incompetent or unwilling to properly perform her duties as an art teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission permanently revoking Respondent's Florida Educator's Certificate. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 15th of November, 2006. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Linda Lindquist 2209 North Riverside Drive Tampa, Florida 33602 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, James "Jimmy" Bilbo (Bilbo) was at all times material to this proceeding a member of the Liberty County School Board. On July 22, 1993, Complainant, Jeremiah "Jerry" Anders (Anders), a former employee of the Liberty County School Board, filed Complaint No. 93-98 with the State of Florida Commission on Ethics (Commission) against Bilbo. Specifically Anders alleged the following: I feel Jimmy Bilbo has violated Sec. 112.313(6) of the Florida Statutes. Please see the attached descriptions of possible violations. * * * * During the spring of 1993 Jimmy Bilbo instructed the following work be done on his friend, Laban Bontrager's bulldozer at the bus shop: Grease job Rake installed Filled with county diesel This was done on school time with school materials. Clay Evans and Lester Bramblett witnessed this. The Commission ordered a preliminary investigation. On December 7, 1993, the Commission filed a Public Report, finding there was no probable cause to believe Bilbo violated Section 112.313(6), Florida Statutes and dismissing the complaint. On January 13, 1994, Bilbo filed his Amended Petition for Costs and Attorney's Fees and Request for Hearing. Shortly after Bilbo was elected, the school board, on Bilbo's motion, voted to refer some allegations of impropriety at the school bus barn to the state attorney's office for investigation. Some ethics complaints were also filed relating to the same incidents, but Bilbo played no part in the initiation of the ethics complaints. During these investigations Mr. Anders had been questioned. Anders harbored some resentment towards Bilbo for his part in the referral of the matter to the state attorney's office. Mr. Anders was employed with the Liberty County School System until June 30, 1993, when his contract was not renewed. In April, 1993, Bilbo loaned a tractor (bulldozer) to the school system for use in filling in holes at the school maintenance garage that resulted from the removal of fuel tanks at the maintenance garage and in spreading dirt for a parking area. The tractor was also to be used to clear out and dress up a holding pond adjacent to the garage in order to accommodate runoff water. Although the tractor was owned by Laban Bontrager, a friend of Bilbo's, Bilbo had authorization to loan the tractor. Bilbo and Lester Bramlett, the school maintenance foreman, went to Bilbo's home, loaded the tractor which had a root rake attached to the front end and a full tank of gas, and carried the tractor to the maintenance garage for Mr. Bramblett to use for county work. In order for the tractor to be used to spread dirt for the parking area, Mr. Bramlett and Bilbo removed the root rake. The tractor remained on county property until approximately mid-May, 1993. During this time the tractor was used only for county work. While Mr. Bramblett was using the tractor, he added fuel as necessary and kept the blade and tracks greased for effective operation of the machine. After Mr. Bramblett finished using the tractor, he put fuel in the tank. When Bilbo came for the return of the tractor, Bilbo mounted the root rake on the tractor and loaded the tractor on his trailer. Bilbo did not charge anyone for the use of the tractor. In his complaint, Anders listed Clay Evans and Lester Bramlett as witnessing the work being done on the tractor on school time and with school materials in violation of Section 112.313(6), Florida Statutes. Mr. Anders was not present at the alleged incident. Bramblett denied that Bilbo instructed him to grease the tractor, put a rake on it, and fill it with fuel. Both Messrs Bramblett and Evans testified that the tractor was used for county work at no charge to the county. Diane Lindsey testified that she heard Bramblett say that Bilbo told him to gas and service the tractor and put the root rake on it. Having judged the credibility of the witnesses, I find that Bilbo did not instruct Mr. Bramblett to gas, service, or attach the root rake to the tractor. The tractor was loaned to the school system containing a full tank of gas and it was returned to Bilbo with a full tank of gas. It was necessary to grease the tractor while in use to keep it running properly, and Bilbo put the rake on the tractor prior to loading the tractor for the return trip to Bilbo's house. There was no personal benefit to Bilbo or to Mr. Bontrager. After Anders' contract was not renewed, Anders told George Sanders, a friend of Anders and Bilbo, to tell three friends, Mr. Johnson, Mr. Wilbanks and Bilbo, that "he [Anders] had him [Bilbo] and was going to get him." Anders told Mr. Bramblett after the investigation by the Commission of Anders' complaint, that he wanted "Bilbo to feel the same kind of pain that he had."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying James "Jimmy" Bilbo's Amended Petition for Attorney's Fees and Costs. DONE AND ENTERED this 28th day of March, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1994. APPENDIX TO FINAL ORDER, CASE NO. 94-337FE To comply with the requirements of Section 120.59(2), Florida Statutes, (1993), the following rulings are made on Respondent's proposed findings of fact Respondent's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: Accepted in substance except the Report on Investigation was not entered into evidence. Paragraphs 7-8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraphs 10-14: Rejected as unnecessary detail. Paragraph 15: Accepted in substance. Paragraph 16: The first sentence is accepted in substance. The second sentence is rejected as not supported by the evidence. Paragraph 17: Accepted in substance except the portion "to teach him a lesson" which is rejected as not supported by the evidence. Paragraph 18: Rejected as not supported by competent substantial evidence. COPIES FURNISHED: James W. Bilbo Route One, Box 80 Bristol, Florida 32321 Jerry Anders Route 1, Box 151 Bristol, Florida 32321 Carrie Stillman Complaint Coordinator Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams Executive Director Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahasee, Florida 32317-5709
The Issue The issue is whether Respondent violated Section 231.3605(2)(c), Florida Statutes (2001), by engaging in alleged harassment, inappropriate interactions with colleagues, or misconduct. (All chapter and section references are to Florida Statutes (2001) unless otherwise stated).
Findings Of Fact On March 13, 2000, the School Board employed Respondent as a Plant Operator at Seminole High School. The School Board transferred Respondent to Tarpon Springs High School on May 22, 2000. On August 2, 2000, Respondent earned a satisfactory evaluation from his supervisor. The evaluation stated that he is a "hard worker," a "good team worker," and "he works well with others." On February 15, 2001, Respondent earned a Better Than Satisfactory evaluation from his supervisor. The evaluation stated that Respondent is a "good team worker" and is "always willing to help others." On September 17, 2001, the School Board promoted Respondent to Night Foreman at Cypress Woods Elementary School (Cypress Woods). The two individuals who had previously served as Night Foremen were Barbara Moore (Moore) and Kevin Miller (Miller). At Cypress Woods, Sharon Sisco (Sisco) was the Principal, Marilyn Cromwell (Cromwell) was the Assistant Principal, and Candace Faull (Faull) was the Head Plant Operator. As Head Plant Operator, Faull supervised Respondent as well as Moore and Miller. Each Night Foreman had "poor communication problems" with Faull. Between the fall of 2000 and the spring of 2002, Respondent, Moore, and Miller each supervised individual Plant Operators at Cypress Woods, including Alice Mertz (Mertz). Mertz had problems with taking instructions from each Night Foreman and with taking complaints "over their head[s]" directly to Faull. Faull attempted to "set up" both Miller and Moore for disciplinary action by the School Board. During the fall of 2000, the School Board received numerous complaints from Miller and Moore about the abuse they suffered at Cypress Woods. On October 10, 2000, Sisco issued specific directives to Faull, instructing her "not to make or engage in negative conversation [with] . . . the crew (or other staff) regarding the Night Foreman." On March 14, 2001, Sisco reprimanded Faull and again counseled her "not to make or engage in negative conversation made by the night crew (or other staff) about the night foreman." On March 20, 2001, Cromwell instituted a Success Plan. The Plan instructed the Plant Operations crew to "refrain from gossip and negative comments about each other." The Plan required the Plant Operations crew to maintain a Communications Log. During the spring of 2001, Cromwell monitored the behavior of the Plant Operations staff through regular meetings. The Plant Operations crew continued its historical behavior after the School Board promoted Respondent to Night Foreman at Cypress Woods in the fall of 2001. On February 1, 2002, Respondent earned a Better Than Satisfactory evaluation from Sisco. The evaluation stated that Respondent is a "great team worker" who "gets along with staff." On February 28, 2002, Respondent touched Mertz on her buttocks in the break room at Cypress Woods in the presence of at least two other people in the room. The physical contact occurred when Mertz walked past Respondent on her way out of the break room. Respondent admits that his hand made contact with the buttocks of Mertz. However, Respondent claims that the contact was incidental, not intentional, not inappropriate, and did not satisfy the definition of sexual harassment. Mertz did not confront Respondent but left the room. However, Mertz later filed a sexual harassment complaint with her employer. Campus police investigated the matter on March 1, 2002. The investigation included statements from Mertz, Respondent, and Mr. Todd Hayes (Hayes), one of the individuals who was present in the break room at the time of the incident. All three testified at the administrative hearing and provided written statements during the investigation. Mertz and Respondent also provided deposition testimony during pre- hearing discovery. Respondent also provided an additional statement on March 5, 2002, during an interview with Michael Bissette (Bissette), Administrator of the School Board's Office of Professional Standards (OPS). On March 18, 2002, Bissette determined that Respondent had committed harassment, inappropriate interaction, and misconduct in violation of School Board Policy 8.25(1)(m), (p), and (v), respectively. School Board Policy 8.25(1)(m), (p), and (v) authorizes disciplinary action for each offense that ranges from a caution to dismissal. Bissette recommended to the Superintendent of the School Board that the School Board dismiss Respondent from his employment. By letter dated March 18, 2002, the Superintendent notified Respondent that Respondent was suspended with pay from March 13, 2002, until the next meeting of the School Board on April 16, 2002. If the School Board were to adopt the recommendation of dismissal, the effective date of dismissal would be April 17, 2002. Respondent requested an administrative hearing, and the School Board suspended Respondent without pay on April 17, 2002, pending the outcome of the administrative hearing. Some inconsistencies exist in the accounts provided by Mertz. For example, Mertz claims in her testimony that the incident occurred "around 2:30 p.m." The investigation report by the campus police shows that Mertz claimed the incident occurred around 3:00 or 3:30 p.m. Other inconsistencies exist between the accounts by Mertz and Hayes. For example, Mertz testified that five people were in the break room at the time of the incident and that she did not confront Respondent or say anything to Respondent. Hayes recalls that only four people were in the room and that Mertz did turn and say something to Respondent such as, "Oh stop it." Inconsistencies regarding the time of the incident, the number of people in the break room, and whether Mertz said anything to Respondent at the time are not dispositive of the material issues in this case. The material issues are whether the physical contact by Respondent was intentional, sexual, and offensive, whether it was inappropriate, and whether it constituted misconduct within the meaning of School Board Policy 8.25(1)(m), (p), and (v), respectively. Respondent claims that he touched Mertz accidentally while he was putting his keys into a pocket at the particular time that Mertz walked in front of Respondent. Mertz walked between Respondent and Hayes in a manner that prevented Hayes from observing the actual contact by Respondent. However, Hayes did observe Respondent's movements up to the time of the actual contact. When Respondent was approximately a foot away from Mertz, Respondent moved his left hand from his side in an upward direction with his palm up and fingers extended to a point within an inch or so of the right buttock of Mertz. Respondent's arm was always extended and did not move in a sideways direction that would have occurred if Respondent had been putting keys into his pocket or reaching for keys in his pocket or on his belt. Respondent had a smirk on his face and laughed. The testimony of Hayes at the administrative hearing concerning Respondent's hand and arm movements was consistent with the accounts by Hayes in two written statements provided during the investigation. Mertz felt Respondent grab her right buttock. She felt Respondent's hand tighten on her buttocks. Mertz did not feel Respondent inadvertently touch her. The physical contact Mertz felt on her buttocks was consistent with the observations by Hayes. The testimony of Mertz at the administrative hearing concerning the physical contact is consistent with accounts by Mertz in three written statements provided during the investigation and in her pre-hearing deposition. Respondent's testimony concerning his hand movements in the break room does not possess the consistency present in the accounts by Mertz and Hayes. When asked on direct examination what happened, Respondent testified: I was walking towards the cabinet to get the flags after we'd had a meeting, to leave; she walked by me -- I -- walked behind her. I had my keys clipped to my right side of my belt and they were flopping against my leg. I wasn't going to need my keys so I started to reach over with my left hand to open my pocket because I had my keys in my right hand to put them in, because my pants were tight and there was a top pocket to put them in and as my hand came up and around that's when I hit her, I brushed against her. Transcript (TR) at 284. On cross-examination, counsel for Petitioner asked questions that provided Respondent with an opportunity to reconcile his testimony with ostensibly divergent accounts during the investigation. Q. The day after the incident you wrote a statement for the police officer, didn't you? A. Yes, I did. Q. And in the statement you said Ms. Mertz asked you to grab her can, didn't you? * * * A. Yes, this is what I wrote but I misquoted it. She said that she was going to grab her can. Q. But you wrote in the statement that Alice said, grab my can? Is that what you wrote? A. That's what I wrote but that "my" is her, not me. * * * Q. Let me ask you . . . Did you write in your statement, "and with my left hand I whacked at her to say, hey"? A. Yes. But I was using that as a description on the type of motion it was. It was like a, you know, a hey, type of motion that I came across. TR at 285-286. In Respondent's initial written statement to campus police, Respondent wrote that he whacked at Mertz with his "open" left hand as if to say hey but did not know where contact was made. In a second written statement to campus police, Respondent wrote that he whacked at Mertz with the "back" of his left hand. In an interview with Sisco, Respondent claimed that he and Mertz were just joking. During direct examination, Respondent did not testify that he whacked at Mertz as if to say "hey." Rather, Respondent testified that his left hand inadvertently came in contact with Mertz as a result of Respondent reaching for his keys. The account provided by Respondent during direct examination at the hearing is consistent only with Respondent's testimony in his pre-hearing deposition. The statements given during the investigation are closer in time to the actual event. The actions of Hayes and Mertz immediately following the incident are consistent with their testimony that Respondent intentionally grabbed the buttocks of Mertz in a sexual manner. Hayes asked another individual in the break room if she had observed the incident. He later reported the incident to Faull before speaking to Mertz. Mertz was initially shocked and left the break room; she later reported the incident to her employer. The physical contact by Respondent created an offensive environment for Mertz. Mertz was initially completely in shock. She then became angry and eventually became so angry she "wanted to strangle" Respondent. Mertz cried and was very upset when she completed a written statement for Sisco. She did not tell her husband immediately because she did not want to upset him. Respondent's physical contact with Mertz constituted sexual harassment within the meaning of School Board Policies 8.24 and 8.241. The physical contact was "unwanted sexual attention," "unwanted physical contact of a sexual nature," and "physical contact" that had the purpose of creating an "offensive environment" within the meaning of School Board Policies 8.24(2)(a), (2)(b)4, and 8.241(2)(a)1, respectively. Respondent's physical contact with Mertz violated the prohibitions in School Board Policy 8.25(1)(m), (p), and (v). The physical contact was harassment that created an offensive environment in violation of School Board Policy 8.25(1)(m). It was an inappropriate interaction that violated Policy 8.25(1)(p). It was misconduct that violated Policy 8.25(1)(v). Respondent has no prior disciplinary history. The physical contact engaged in by Respondent is his first offense and is a single isolated violation of applicable School Board policy. Respondent has never asked Mertz on a date, never seen her outside work, never made any sexual comments either to her or about her, and has never touched her when they were working alone together on the night shift.
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 the three charged offenses, suspending Respondent without pay from April 17 through September 17, 2002, and reinstating Respondent to his former position on September 18, 2002. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, 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 6th day of September, 2002. COPIES FURNISHED: Jacqueline Spoto Bircher, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Ted E. Karatinos, Esquire Seeley & Karatinos, P.A. 3924 Central Avenue St. Petersburg, Florida 33711 Dr. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 Honorable Charlie Crist, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
