The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007)1/, by terminating Petitioner's employment in retaliation for her filing a formal grievance asserting that a co-worker made a racially discriminatory comment to her at a staff meeting.
Findings Of Fact The District Board of Trustees of LCCC is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by the College and began work on January 29, 2007. She worked in the cosmetology department as a Teaching Assistant II until the College terminated her employment on June 28, 2007. In addition to Petitioner, the College's cosmetology department consisted of two instructors, Carol McLean and Vicki Glenn. Ms. McLean was also the department coordinator, meaning that she supervised Petitioner and Ms. Glenn. The instructors performed classroom instruction and supervised students "on the floor" in the department's laboratory, where the students practiced their skills on clients who made appointments with the department to have their hair styled. Petitioner's duties included answering the telephone, making client appointments, ordering and stocking cosmetology supplies, and recording the hours and services performed by the students. Petitioner was a licensed cosmetologist and was expected to assist on the floor of the lab, but only when an instructor determined that her presence was necessary. Petitioner was not authorized to perform classroom instruction. Petitioner was at all times employed on a probationary basis under LCCC Policy and Procedure 6Hx12:8-04, which provides that all newly hired career service employees must serve a probationary period of six calendar months. This Policy and Procedure also requires that conferences be held with the employee at the end of two and four months of employment. The conferences are to include written performance appraisals and should be directed at employee development, areas of weakness or strength, and any additional training required to improve performance. Petitioner acknowledged that she attended orientation sessions for new employees during which this Policy and Procedure was discussed.4/ The evidence at hearing established that the orientation sessions covered, among other subjects, an explanation of the probationary period, the College's discipline and grievance procedures, and how to find the College's Policies and Procedures on the internet. The employee orientation process also required Petitioner's immediate supervisor, Carol McLean, to explain 14 additional items, including Petitioner's job description and the College's parking policies. The evidence established that Ms. McLean covered these items with Petitioner. Petitioner's first written evaluation covered the period from January 29, 2007 through March 29, 2007. The evaluation was completed by Ms. McLean on April 13, 2007, and approved by the Dean of Occupational Programs, Tracy Hickman, on April 30, 2007. The College's "Support Staff Job Performance Evaluation" form provides numerical grades in the categories of work knowledge, work quality, work quantity and meeting deadlines, dependability, co-operation, judgment in carrying out assignments, public relations, and overall performance. A score of 1 or 2 in any category is deemed "unsatisfactory." A score of 3 or 4 is "below norm." A score of 5 or 6 is "expected norm." A score of 7 or 8 is "above norm." A score of 9 or 10 is rated "exceptional." Petitioner's scores in each area were either 5 or 6, within the "expected norm." Ms. McLean graded Petitioner's overall performance as a 6. The evaluation form also provides questions that allow the supervisor to evaluate the employee's performance in a narrative format. In response to a question regarding Petitioner's strengths, Ms. McLean wrote that Petitioner "has demonstrated she is very capable handling conflicts/situations concerning clients. She is also good working with the students when needed. Her computer skills/knowledge has been an asset." In response to a question regarding Petitioner's weaknesses, Ms. McLean wrote, "Kay5/ needs to be a little more organized. I feel confident with the move to the new building, she will be able to set her office up to be more efficient for herself." Petitioner testified that she has excellent organizational skills and that she is, in fact, a "neat freak." Her problem was the utter disorganization of the cosmetology department at the time she started her job. She could not see her desk for the pile of papers and other materials on it. Boxes were piled in the middle of the floor. There were more than 100 unanswered messages in the recorded message queue. Petitioner testified that neither Ms. McLean nor Ms. Glenn could tell her how to proceed on any of these matters, and that she was therefore required to obtain advice via telephone calls to either Wendy Saunders, the previous teaching assistant, or Jeanette West, secretary to the Dean of Occupational Programs. Neither Ms. McLean nor Ms. Glenn recalled the complete departmental disorganization attested to by Petitioner at the outset of her employment. In fact, Ms. McLean recalled having to work 80-hour weeks to restore order to the department's workspace after Petitioner was discharged. No other witness testified as to disorganization prior to Petitioner's hiring. The evidence presented at the hearing established that Petitioner dramatically overstated the poor condition of the cosmetology department's offices at the time she started work, and also greatly overstated any contribution she made to improve its organization. Petitioner's second and final evaluation covered the period from March 29, 2007, through May 29, 2007. The evaluation was completed by Ms. McLean on May 22, 2007, and approved by Dean Hickman on May 23, 2007. Petitioner's numerical scores in each of the categories, including overall performance, was 4, meaning that her performance was "below norm." In a typewritten attachment, Ms. McLean wrote: Employee Improvement: Strengths: Kay is very good with the students and has strong desires to help them. Weaknesses: A concern is Kay's words and actions have shown that she would rather teach than be in the office. There is still a lack of organization in the office. We have had a couple incidents where we have to search for invoices, etc. I am still receiving complaints about the phone not being answered. Other comments: Too often Kay's actions have made it difficult for the department to operate effectively. Since Kay's arrival, it have discussed [sic] that each person must respect the protocol of communicating within the chain of command. On numerous occasions Kay ignored those instructions, In spite of my direct instructions to notify/discuss an incident report to Dean Hickman before doing anything else with it, Kay distributed it to others.6/ The College terminated Petitioner's employment on June 28, 2007, roughly five months after she began work and well within the six-month probationary period. Petitioner's dismissal was due to inadequate job performance and to several episodes displaying poor judgment and disregard of the College's rules and regulations. As to day-to-day job performance, the evidence established that Petitioner often had to be asked several times to do things that she conceded were within the scope of her duties. One of Petitioner's duties was to track the department's inventory, order supplies as needed, check the supplies against the invoices as they arrived, and unpack the supplies and restock the department's shelves. If the supplies were not removed from their shipping containers and stocked on the shelves, it was difficult for the instructors and students to find items or know when the department was running low on a given supply. Student cosmetologists at the College were frequently required to use caustic chemicals, and it was critical that the supplies be correctly inventoried and shelved to avoid mistakes in application of these chemicals. Ms. McLean had to tell Petitioner repeatedly to unpack the supplies. Petitioner would tell Ms. McLean that she would take care of it, but later Ms. McLean would notice that the supplies were still in their boxes.7/ Ms. McLean testified that there were multiple occasions when paperwork could not be located due to Petitioner's lack of a filing system. Ms. McLean and Petitioner would have to rummage through stacks of paper to find the item they needed because Petitioner failed to file the department's paperwork in a coherent manner. Another of Petitioner's duties was to set up "product knowledge" classes conducted by vendors of hair care products used in the cosmetology program. In February 2007, Ms. Glenn asked Petitioner to set up a class with Shirley Detrieville, the Redken representative for the College. Over the next month, Ms. Glenn repeatedly asked Petitioner about her progress in setting up the class, and Petitioner consistently responded that Ms. Detrieville had not returned her calls. Finally, in March, Ms. Glenn happened to see Ms. Detrieville on the campus. Ms. Detrieville informed Ms. Glenn that all the paperwork for the class had been completed long ago, and she was just waiting for Petitioner to call and let her know when to come. Ms. Glenn's class never received the Redken training. The evidence established that Petitioner consistently failed to return phone calls made to the department. There was a core group of women, mostly retirees that constituted an important segment of the regular patrons at the department's lab. Keeping track of their appointments was important because the students needed practical experience in order to meet the requirements for licensure. It was also important to keep track of the training needs of each student, because a student working on hair coloring, for instance, needed to be matched with a customer requesting that service. Among Petitioner's duties was to make the appointments for the patrons, and to coordinate the appointments with the students. Ms. McLean and Ms. Glenn testified that they consistently received complaints that Petitioner did not return phone calls from patrons attempting to make appointments. Ms. McLean recalled an elderly woman named Ms. Grammith, who was a weekly customer at the lab. Ms. Grammith phoned Ms. McLean at home because she was unable to get Petitioner to return her calls for an appointment.8/ Ms. Glenn recounted an occasion when she received a phone call from Ms. Grammith, complaining that Petitioner was not returning her calls. Ms. Glenn walked into Petitioner's office and asked her to return Ms. Grammith's call and make her appointment. Petitioner assured Ms. Glenn that she would. Ms. Glenn then went to teach a class. When she returned to her office, Ms. Glenn had another message from Ms. Grammith. Ms. Glenn asked Petitioner about the situation, and Petitioner admitted that she had not yet returned the call. Still later on the same afternoon, Ms. Glenn received a third call from Ms. Grammith. Again, Ms. Glenn inquired of Petitioner, who again admitted that she had not phoned Ms. Grammith. The next morning was a Friday, and Ms. Glenn received another call from Ms. Grammith. Ms. Glenn walked into Petitioner's office and told her to call Ms. Grammith. Ms. Glenn knew Petitioner never made the call because Ms. Grammith called Ms. Glenn yet again on the following Monday. Another elderly regular customer, Ms. Caldwell, stopped Ms. Glenn in the hallway one day to ask "what in the world was going on here." Ms. Caldwell complained that Petitioner never got her appointment right, and always told her that she had come in on the wrong day or at the wrong time. On this day, Ms. Caldwell was left sitting in the hallway outside the lab for three and one-half hours because Petitioner failed to schedule her appointment correctly. On another occasion, Shirley Rehberg, an LCCC employee, emailed Ms. Glenn to inquire about making an appointment for a pedicure. Ms. Glenn responded that Petitioner handled appointments, and provided Ms. Rehberg with information as to Petitioner's office hours. On three different occasions, Ms. Rehberg informed Ms. Glenn that she had attempted to make appointments with Petitioner but had received no response. Ms. Glenn also recalled going to the College registrar's office on unrelated business and being asked by Debbie Osborne, an employee in that office, whether the cosmetology department had stopped taking appointments. Ms. Glenn told her that all she had to do was call Petitioner. Ms. Osborne replied that she had emailed Petitioner several times and never received a response. Ms. McLean concluded that Petitioner was much more interested in the occasional teaching aspect of her position than she was in the quotidian matters of filing, ordering and answering the phone that constituted the bulk of her job. Ms. McLean believed that Petitioner's eagerness to teach, even when her presence on the floor was not requested or needed, sometimes caused Petitioner to neglect her other duties. Petitioner admitted that she preferred teaching, but also testified that she was forced to teach students at least two days per week because Ms. McLean simply skipped work every Wednesday and Thursday. Petitioner stated that when she was on the floor of the lab, she could not hear the phone ringing back in the office. She believed that this might have accounted for some of the missed phone calls. Ms. McLean credibly denied Petitioner's unsupported allegation that she skipped work twice per week. Ms. McLean was in the classroom and lab with her students four days per week, as required by her schedule. Ms. McLean reasonably observed that she would not remain long in the College's employ if she were to skip work every Wednesday and Thursday. When classes were not in session, faculty members such as Ms. McLean and Ms. Glenn were not required to come into the office, whereas the teaching assistant was required to come in and work a full day from 8:00 a.m. to 5:00 p.m. On these faculty off-days, it was especially important for Petitioner to be on the job because she constituted the sole point of contact between students and the cosmetology department. New classes in cosmetology start twice a year, and prospective students may drop by the campus at any time. If no one is present during normal working hours to answer questions or assist the student in applying, the College could lose a prospective student as well as suffer a diminished public image. The evidence established that Petitioner would take advantage of the lack of supervision on faculty off-days to go missing from her position, without submitting leave forms for approval by an administrator as required by College policy. May 4, 2007, was the College's graduation day. Ms. McLean and Ms. Glenn arrived at the cosmetology building at 3:00 p.m. to prepare for the cap and gown ceremony and noted that Petitioner was not there, though it was a regular work day for her. Petitioner was still absent at 4:30 p.m. when the two instructors left the building to go to the graduation ceremony. On May 15, 2007, a faculty off-day, Ms. Glenn came in at 11:00 a.m. to prepare for her class the next day. Petitioner asked Ms. Glenn to handle a student registration matter while Petitioner went out. Ms. Glenn agreed to do so. The students had yet to arrive by 2:00 p.m. when Ms. Glenn was ready to leave. Petitioner had still not returned to the office, forcing Ms. Glenn to ask Ms. West to register the students if they arrived. Ms. Glenn had no idea when or if Petitioner ever returned to work that day. Marcia Brinson was the custodian who cleaned the cosmetology building. During summer session at the College, Ms. Brinson worked from 2:00 p.m. to 11:00 p.m. She would often come into the cosmetology building and find that Petitioner was not there. This was the case on May 15, 2007, when Ms. Brinson entered the building at 2:00 p.m. At around 2:30, an administrator named Glenn Rice came to the cosmetology building with two students whom he was attempting to enroll.9/ Ms. Brinson phoned Ms. McLean at home to inform her of the situation. Ms. McLean phoned the cosmetology office. Petitioner did not answer. At about 2:50 p.m., Ms. McLean called Petitioner at her cell phone number. Petitioner answered and told Ms. McLean that she was at her mother's house, but was about to return to the College. Ms. McLean could not say whether Petitioner ever actually returned to the College that day. At the hearing, Petitioner claimed that the only time she left the cosmetology department on May 15, 2007, was to go to the library at 2:15 p.m. and obtain materials for a class she was going to teach on May 17. This testimony cannot be credited, given that it conflicts with the credible testimony of Ms. McLean, Ms. Glenn and Ms. Brinson. Further belying Petitioner's claim is the fact that she later submitted a leave form claiming "personal leave" for two hours on May 15, 2007. She claimed the hours from 3:30 p.m. to 5:30 p.m. Aside from its inconsistency with Petitioner's testimony, this claim was inaccurate on two other counts. First, the evidence established that Petitioner was away from the office from at least 11:00 a.m. until some time after 3:00 p.m. Second, Petitioner's regular work day ended at 5:00 p.m., thus giving her no cause to claim leave for the half-hour between 5:00 and 5:30 p.m. The College has a "wellness" program in which employees are allowed to take 30 minutes of leave, three days per week, in order to engage in some form of exercise. Petitioner considered wellness time to be the equivalent of personal leave, and would leave her job at the College early in order to keep an appointment at a hair-styling salon at which she worked part-time. Finally, Petitioner was unwilling or unable to comply with the College's parking decal system. At the time she was hired, Petitioner was issued a staff parking pass that entitled her to park her car in any unreserved space on he campus. As noted above, many of the cosmetology customers were elderly women. For their convenience, the College had five spaces reserved for customers directly in front of the cosmetology building. Customers were issued a 5 x 8 "Cosmetology Customer" card that they would leave on their dashboards. If all five of the reserved spaces were taken, the card allowed the customer to park in any space on the campus. On May 30, 2007, the College's supervisor of safety and security, Tony LaJoie, was patrolling the campus on his golf cart. Petitioner flagged him down, asking for help with a dead battery in her car. Mr. LaJoie stopped to help her, but also noticed that Petitioner's car was parked in a space reserved for customers and that Petitioner had a "Cosmetology Customer" card on her dashboard. When he asked her about it, Petitioner told Mr. LaJoie that she had lost her staff parking pass and therefore needed to use the customer pass. Mr. LaJoie told Petitioner that she could go to the maintenance building and get a new staff pass, or get a visitor's pass to use until she found the first pass. Petitioner told Mr. LaJoie that she could not afford the $10 replacement fee for the pass. Mr. LaJoie told her that the $10 replacement fee was cheaper than the $25 to $50 fines she would have to pay for illegally parking on campus. Petitioner promised Mr. LaJoie that she would go to maintenance and take care of the situation. On June 5, 2007, Mr. LaJoie found Petitioner's car again parked in a customer reserved space and with a customer card on the dashboard. Mr. LaJoie wrote Petitioner a parking ticket. Petitioner was well aware that the customer spaces were reserved at least in part because many of the department's customers were elderly and unable to walk more than a short distance. Petitioner nonetheless ignored College policy and parked her car in the reserved spaces. Petitioner never obtained a replacement parking pass.10/ Dean Hickman was the administrator who made the decision to recommend Petitioner's termination to the College's Vice-President, Charles Carroll, who in turn presented the recommended decision to LCCC President Charles W. Hall, who made the final decision on termination. She based her recommendation on the facts as set forth in Findings of Fact 19 through 48, supra. Petitioner's termination was due to her performance deficiencies. Dean Hickman considered Petitioner's pattern of conduct, including her repeated violation of parking policies and her practice of leaving her post without permission, to constitute insubordination. Ms. McLean, who provided input to Dean Hickman as to Petitioner's performance issues, testified that Petitioner's slack performance worked to the great detriment of a department with only two instructors attempting to deal with 20 or more students at different stages of their training. Petitioner's position was not filled for a year after her dismissal. Ms. McLean and Ms. Glenn worked extra hours and were able to perform Petitioner's duties, with the help of a student to answer the phones. The fact that the instructors were able to perform their own jobs and cover Petitioner's duties negates Petitioner's excuse that she was required to do more than one full-time employee could handle. Furthermore, Ms. McLean testified that, despite the added work load, Petitioner's departure improved the working atmosphere by eliminating the tension caused by Petitioner. Because Petitioner was still a probationary employee, the College was not required to show cause or provide specific reasons for her dismissal. Nevertheless, the evidence established that there were entirely adequate, performance-based reasons that fully justified the College's decision to terminate Petitioner's employment. The evidence further established that Petitioner's dismissal was not related to the formal grievance Petitioner filed on June 5, 2007. However, because Petitioner has alleged that her termination was retaliatory, the facts surrounding her grievance are explored below. The grievance stemmed from an incident that occurred between Petitioner and Ms. Glenn on May 16, 2007, the first day of the summer term. A student named Russia Sebree approached Ms. Glenn with a problem. Ms. Sebree was not on Ms. Glenn's summer class roster because she had not completed the Tests of Adult Basic Education ("TABE"), a test of basic reading, math and language skills. Students were required to pass the TABE in their first semester before they would be allowed to register for their second semester. Ms. Glenn told Ms. Sebree that, because the initial registration period had passed, they would have to walk over to the Dean's office and have Dean Hickman register Ms. Sebree for the class. Ms. Glenn phoned Dean Hickman's secretary, Ms. West, to make an appointment. Ms. West told Ms. Glenn that Dean Hickman was out of the office, and that she would make a return call to Ms. Glenn as soon as the dean returned. While waiting for Ms. West's call, Ms. Sebree apparently drifted into Petitioner's office. She mentioned to Petitioner that she hadn't passed the TABE test, and Petitioner told her she could take care of the matter by making an appointment for Ms. Sebree to take the test. Ms. Glenn overheard the conversation and walked in to stop Petitioner from making the call. She told Petitioner that she had a call in to Dean Hickman, and that she and Ms. Sebree would have to meet with the dean to determine whether Ms. Sebree could register for Ms. Glenn's summer class or whether she would be required to complete the TABE and wait until the next semester. Ms. Glenn was angered by Petitioner's interference in this matter. Petitioner's actions were beyond the scope of a teaching assistant's duties, unless requested by an instructor.11/ She jumped into the situation without inquiring whether Ms. Sebree had talked to her instructor about her problem and without understanding the steps that Ms. Glenn had already taken on Ms. Sebree's behalf. Eventually, Ms. West returned the call and Ms. Glenn and Ms. Sebree met with Dean Hickman. After the meeting, Ms. Glenn requested a private meeting with Dean Hickman. She told the dean that she was very upset that Petitioner had taken it upon herself to take over the situation with Ms. Sebree, when Ms. Glenn was taking care of the matter and Petitioner had no reason to step in. Dean Hickman told Ms. Glenn that she would not tolerate a staff person going over an instructor's head in a matter involving a student. Dean Hickman asked Ms. Glenn to send Petitioner over to her office. Dean Hickman testified that she met with Petitioner for about 30 minutes, and that Petitioner left her office requesting a meeting with Ms. Glenn. Dean Hickman did not testify as to the details of her meeting with Petitioner. The dean knew that Petitioner was angry and cautioned her to conduct herself in a professional manner when speaking with Ms. Glenn. Petitioner testified that Dean Hickman "yelled" at her, "I will not have you undermine my instructor's authority." Petitioner professed not to know what Dean Hickman was talking about. The dean repeated what Ms. Glenn had said to her about the incident with Ms. Sebree. According to Petitioner, Ms. Glenn had told the dean "some lie," an "outlandish" tale in which "I went in telling Russia that she didn't have to do what Vicki said, or something like that." Petitioner told Dean Hickman her version of the incident, which was essentially that nothing happened. She was showing Ms. Sebree "some basic algebraic equations and stuff and there was no conflict or anything in the office." Petitioner asked for a meeting "so I can see what's going on." Petitioner returned to the cosmetology department. She was visibly upset. She asked for a departmental meeting with Ms. McLean and Ms. Glenn that afternoon. Ms. McLean agreed to move up the weekly departmental meeting in order to take care of this matter. The meeting convened with Ms. McLean going over the usual day-to-day matters involving the program. Once the regular business was completed, Ms. McLean stated that she wanted Petitioner and Ms. Glenn to air out their problems. Petitioner asked Ms. Glenn why she wanted to tell lies about her. Ms. Glenn said, "What?" and Petitioner stated, "You're a liar." Ms. Glenn denied the accusation. Petitioner repeated, "You're nothing but a liar." In anger and frustration, Ms. Glenn stated, "Look here, sister, I am not a liar." Petitioner responded, "First, you're not my sister and, secondly, my name is Stephanie K. Taylor, address me with that, please."12/ Ms. McLean testified that both women were "pretty heated" and "pretty frustrated" with each other. She concluded the meeting shortly after this exchange. After the meeting, Petitioner and Ms. McLean spoke about Ms. Glenn's use of the word "sister," which Petitioner believed had racial connotations. Ms. McLean told Petitioner that she did not believe anything racial was intended.13/ Ms. Glenn had never been called a liar, and in her frustration she blurted out "sister" in the same way another angry person might say, "Look here, lady." Petitioner seemed satisfied and the matter was dropped for the remainder of the day. Dean Hickman testified that Petitioner brought some paperwork to her office that afternoon after the departmental meeting. Petitioner told her that she felt better about the situation, that they had aired their differences and everything now seemed fine. The dean considered the matter resolved. By the next morning, May 17, 2007, Petitioner had changed her mind about the comment. She sent an email to each member of the College's board of trustees, President Hall, Dean Hickman, and various other College employees that stated as follows: Hello. I am Stephanie K. Taylor, Teaching Assistant for Cosmetology. I am writing because of an incident that took place on yesterday, May 16, 2007. Nancy Carol McLean (Coordinator/Instructor), Vicki Glenn (Instructor) and I met for a meeting to discuss concerns in our department approximately 11:35 am. During our discussion, Vicki Glenn made a racial comment to me. I disagreed with her concerning a statement she made. Her reply to me was: "No, 'Sister', I did not!" I was very offended by her remark and I replied, "My name is Stephanie Kay Taylor." Following the meeting, I spoke with Ms. McLean and I decided to write this incident statement. If I allow an instructor to call me something other than my name, these incidents will continue. Ms. McLean had repeatedly cautioned Petitioner to respect the College's chain of command. As Petitioner's immediate supervisor, Ms. McLean was supposed to be Petitioner's first resort insofar as work-related complaints. Petitioner was in the habit of going straight to Dean Hickman with complaints before discussing them with Ms. McLean. However, in this instance, Petitioner did show Ms. McLean the text of her statement before she distributed it. Ms. McLean advised Petitioner to take the matter straight to Dean Hickman and discuss it with her before distributing the statement. Petitioner did not take Ms. McLean's advice. Though Petitioner emailed the statement to Dean Hickman, the dean did not actually see the statement until it had been distributed to several other people. No evidence was presented that Petitioner suffered any adverse consequences from distributing her written statement outside the College's chain of command. To the contrary, Petitioner testified that Ms. McLean advised her that if she felt strongly about the matter, she should file a formal grievance pursuant to the LCCC Policy and Procedure 6Hx12:6- 10.14/ Ms. McLean provided Petitioner with the forms she needed to file a written grievance. Petitioner also sought and received the advice of a human relations specialist at the College as to how to file a formal grievance. Both Ms. McLean and Ms. Glenn convincingly testified that they had no ill feeling toward Petitioner for filing a grievance. Ms. McLean stated that the grievance had no impact on her at all. Ms. Glenn was not disturbed by the grievance because she had done nothing wrong and believed the process would vindicate her. Petitioner filed her formal written grievance on June 5, 2007. Vice president Marilyn Hamm began the investigation in the absence of Human Resources Director Gary Boettcher, who picked up the investigation upon his return to the campus. Dean Hickman also participated in the investigation of Petitioner's grievance. They interviewed the witnesses to the incident. They also interviewed 11 cosmetology students and asked them whether they had ever heard Ms. Glenn make any "derogatory or racial slurs or comments" relative to Petitioner. None of the students had heard Ms. Glenn make any remarks fitting the description in the query.15/ One student told the investigators that he had heard Petitioner speak disparagingly of Ms. Glenn, but not vice versa. On June 19, 2007, Mr. Boettcher issued a memorandum to Petitioner that stated as follows: You filed a grievance alleging that Ms. Vickie Glenn made a racial comment to you by calling you "sister." You further stated that you want the same respect that you have given to others and that you be referred to by your name, Stephanie K. Taylor. I was not available when you filed the grievance therefore it was referred to Vice President Hamm who began the investigation and upon my return it was referred to me. Ms. Hamm interviewed yourself, and Carol McLean. Ms. Hamm and I then interviewed Ms. Glenn. Subsequently, Ms. Hickman, the Dean of your department, and I interviewed a random sampling of students in the cosmetology program. The incident you described, when you were referred to as "sister" was discussed with both Ms. McLean and Ms. Glenn, who were in the meeting when the comment was made. They both acknowledged that you were in fact referred to as sister. Neither of them viewed it as a racial comment but a term that was used in the heat of the discussion in which you and Ms. Glenn were very much at odds on a subject. The students were interviewed and asked if you had discussed or made mention of an evaluation that you received and also whether that had ever heard Ms. Glenn talk derogatorily or made any racial comments relative to you. Some of the students heard of talk of your evaluation but none of them heard it first hand from you. None of the students ever heard Ms. Glenn refer to you in any racial or disparaging way. In view of the investigation it is concluded that you were called "sister" but not in a negative or racial inference and that Ms. Glenn has not referred to you in a derogatory or racial manner. This has been discussed with Ms. McLean and Ms. Glenn in that they were asked to refer to you strictly by your name and in a professional manner. I trust this will be satisfactory to you and if you have any questions please feel free to contact me. Petitioner's employment with the College was terminated on June 28, 2007, nine days after Mr. Boettcher's memorandum. No evidence was presented to establish a causal connection between these two events, aside from their temporal proximity. As noted extensively above, the College had more than ample justification to terminate Petitioner's employment before the conclusion of her six-month probationary period. The greater weight of the evidence establishes that Petitioner was terminated from her position with the College due to poor job performance and conduct amounting to insubordination. The greater weight of the evidence establishes that the College did not retaliate against Petitioner for the filing of a grievance alleging that Ms. Glenn had made a racially discriminatory remark towards Petitioner. Rather, the greater weight of the evidence established that College personnel assisted Petitioner in filing her grievance and that the College conscientiously investigated the grievance. The greater weight of the evidence establishes that the College has not discriminated against Petitioner based on her race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Lake City Community College did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of June, 2010.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Albert Forrest Taylor holds Florida teacher's certificate number 356846, issued on December 16, 1983, covering the areas of drafting and administrative supervision, and the evidence so showed. Petitioner's Exhibit No. 1. As the parties also stipulated, respondent was at all times pertinent employed as a teacher of drafting and welding at Florida School for the Deaf and Blind in St. Augustine. He began in that job in the fall of 1979 and continued until his dismissal in January of 1985. Throughout the time Forrest Taylor taught at the Florida School for the Deaf and Blind, the school's administration, in particular Raymond Butler, then supervisor in the vocational education program for the deaf, received numerous complaints from numerous students, male and female, about Mr. Taylor's "physically touching and punching, and squeezing, and coming into physical contact with" (T.91) students. Two or three times a week female students complained "about Mr. Taylor's attitude towards them; how he looked at them." (T.62). His students usually complained "about his manhandling them, or pushing them, or twisting their arm, or things of that nature" (T.95), although they also complained about his sleeping in class and his "[t]alking to them all the time," (T.92) instead of communicating with them in sign language. In general, he had no "rapport with the students." (T.92) He ordinarily taught high school students, but he began the 1984-1985 school year also teaching drafting to younger students, including six or seven mainly eighth graders, during the period that began at one o'clock in the afternoon. Nubia Argenal, who testified she was in the seventh grade at the time, was in the class, as were Sandra, Michele and Scotty Alford. Together in another of Mr. Taylor's drafting classes that year were Kim Benefield, John Sharpton, Theresa Smith and perhaps eight more students. (T.47) ALFORD On January 18, 1985, Scott Alford finished his assignment, about halfway through respondent's one o'clock class. Respondent Taylor was at another student's desk at the time. With papers in one hand and a ruled T- square in the other, Scott left his seat and began hitting an air-conditioning vent with the T-square, which made a loud noise. He "was sort of bored, didn't have anything to do, so ... [he] was tapping the air- conditioning." Petitioner's Exhibit No. 2, pp. 21-22. He persisted even after Mr. Taylor told him to stop and came over to him. With playful intention, Scott hit his teacher with his fist, striking his arm just below the shoulder, "what we used to call a frog," petitioner's Exhibit No. 2, p. 32, although it was just [a] light punch." Id., p. 33. Unamused, Mr. Taylor grabbed Scott by the throat and pushed him backward against some shelves. When he got loose, Scott made for the classroom door, and Mr. Taylor sent him to Brad Thompson's office. Scott recounted events in Brad Thompson's office, where Mr. Thompson, the school's coordinator of vocational services, noticed red marks on both sides of Scott's neck. After he had spoken to Scott, Mr. Thompson left to speak to Mr. Taylor, who admitted "that he did grab Scott ... [but said] that he did it in self defense ... (T.60) In the course of this conversation, certain rules were mentioned, and Mr. Taylor replied "that the rules were full of shit." (T.60) Afterwards, Mr. Thompson went into Mr. Butler's office and brought Mr. Butler into his office where Scott had been waiting. According to Mr. Butler, Scott was very upset, although he was not crying. He "was flushed in the face and [his] hair was tousled ..." (T.83), and had "red welt-type finger marks on his neck ... at least two on one side and one on the other side." Id. He admitted hitting his teacher, but indicated that this type of horseplay was common, with Mr. Taylor frequently doing the hitting. Mr. Butler telephoned Danny Hutto, Assistant Principal, who asked that the matter be investigated further. By the time other students had been interviewed, the school day, a Friday, was over. After school on Monday, Messrs. Taylor, Thompson, Butler and Hutto gathered in Mr. Hutto's office to discuss the incident. Arrogant and profane, Mr. Taylor denied touching Scott Alford's neck, saying "he more or less grabbed him on the shoulder." (T.86) Whether the confrontation one of Scott's classmates, Nubia Argenal, adverted to when she testified that respondent "tried to strangle Scotty," Petitioner's Exhibit No. 4, p. 4, is the same as the imbroglio of January 18, 1985, is not clear from the evidence. SHARPTON John Sharpton, who was born December 11, 1969, (T.46) was in another of Mr. Taylor's drafting classes in 1984 and early 1985. On one occasion, Mr. Taylor grabbed John's throat, too, "or in there." (T.51) "It was a little bit red and then went away ... [with] some ice on it." (T.52) John would not voluntarily take another class from respondent for fear Mr. Taylor would hit him again. (T.52) BENEFIELD Kim Benefield erased something she had written on a piece of paper while in Mr. Taylor's drafting class one day in the fall of 1984 or January of 1985. Bits of the pink eraser (T.34) rubbed off by the erasure (T.23) fell into her lap. When she began brushing them off her dress, Mr. Taylor joined in. He touched her dress and she felt his touch "around the knee." (T.23) Kim said, "No, I will do it myself." (T.35) "Don't touch me, because it makes me feel weird." (T.22) "But he stayed just a little bit more. And he [his hand] went down ... [her] leg." (T. 35-36). On another occasion, a day after a night on which Kim had painted her fingernails, Mr. Taylor, whose son was visiting the class that day, summoned her to where he stood with his son, took her hand, and showed it to his son. (T. 23, 24) Kim found this embarrassing. On still another occasion, Mr. Taylor stood behind Kim and placed his hand on her shoulder, then in the general area of her armpit. She feared further forward movement of his hand, and, thinking "he tried to . . touch [her] breast, ... [she] put [her] arms down," (T.24) to prevent it. At the time, she was talking to a student who sat next to her, and Mr. Taylor "sort of got in between" (T.24) the two students. In a separate incident, after class one day, Kim started to leave even though Mr. Taylor was speaking to her, telling her he was going to give her detention hall. He grabbed her arm hard enough to leave three marks. (T.28-29) Kim, who was born on December 13, 1968 (T.21), would be afraid to return to a class respondent taught. SMITH One day in this same drafting class, Kim thought she saw Mr. Taylor look down the dress of another student, Theresa Smith. (T.26) John Sharpton recalled seven or eight times that respondent "flirted" with Theresa Smith, including one occasion on which he touched her just below her breast. MICHELLE Respondent once poked the end of a T-square "to Michelle's breast ... and said, `You have dirt inside your blouse ...'" Petitioner's Exhibit No. 4, p. 10. ARGENAL From time to time, respondent asked Nubia Argenal, "What is inside your blouse?" Petitioner's Exhibit No. 4, p. 29. He also asked this question of Nubia's classmate Sandra. He said to Nubia, "I like you. You're pretty. You have a pretty body. You're a pretty girl." Mr. Taylor once placed a T-square against Nubia so that it touched her breast, although his hand came in contact only with her chest at a point above her bosom. Petitioner's Exhibit No. 4, p. 66. At least once, Mr. Taylor stood behind Nubia, who was seated at a drafting table, and massaged her shoulders, until her protests dissuaded him. Petitioner's Exhibit No. 4, pp. 55- 56. On one occasion, when she was leaning on her table, he shook the table, with the result that her breasts moved. Petitioner's Exhibit No. 4, pp. 52-55. Other times he took her hands and shook her arms with the same result. Petitioner's Exhibit No. 4, pp. 48-51. On these occasions, respondent laughed. HUGHES Jill Hughes was a junior at the Florida School for the Deaf and Blind during the 1984-1985 school year. She took drafting from Mr. Taylor, but not in either of the classes made up of junior high students. Mr. Taylor rubbed her back on several occasions. Standing behind her in class, "he kind of did his hand, lightly, over the center of . . . [her] back. Petitioner's Exhibit No. 3, p. 23. Ms. Hughes explained: He was walking around the class, and he would walk over to me. Sometimes, when I asked him for help he would walk over to me and put his hand on my shoulder, and I thought at first, the first time that he touched me, I thought nothing was wrong, because I thought it was nice. And then after that, when he started moving his hand, I thought it was funny. So I didn't say anything. And then afterwards I asked for help [with schoolwork], when I was through with that, and then again I asked for help [with schoolwork], and the same thing, he moved his hand and my other friend, he did the same thing to her, touched her, the same way. And I began to notice, and I heard stories and so that was when I told him, "If you touch me again, if you touch me again, I'll tell my mother." Petitioner's Exhibit No. 3, p. 21. On cross-examination, in response to the question, "Isn't it possible that Mr. Taylor was just being fatherly, paternal?", Jill answered, "I don't know." (T.24) Further cross-examination elicited the following: Q. Wasn't it possible that he was merely trying to be supportive? A. It didn't seem that way to me, not the way he touched me. Petitioner's Exhibit No. 3, p. 31. Over a period of "[m]aybe two months," Petitioner's Exhibit No. 3, p. 9, Mr. Taylor complimented her on her legs (great, beautiful, nice), hair (pretty, beautiful blonde), eyes (beautiful), make-up (pretty) and muscles (good). Petitioner's Exhibit No. 3, pp. 7, 9, 17, 18. EFFECTIVENESS REDUCED Respondent's "actions were totally inappropriate. Because of his actions, ... he lost his effectiveness, as far as the students were concerned." (T.114) The students ... were fearful of him. And the students particularly did not want to be in his classroom. (T.114). The assistant principal at the Florida School for the Deaf "would not recommend that he teach anywhere in the State of Florida, or anywhere, period." (T.114) It is not a question of his technique in teaching deaf children (T.95-99). It is more a question of "inborn qualities, personal qualities that a person has, feeling[s] toward other people." (T.99)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, Marc D. Baldwin, formerly held a Florida Teaching Certificate, No. 393803, and was employed as a Public school teacher during the 1979-1980 school year at Fort Myers High School in the Lee County School District until his resignation on March 31, 1980. During the 1979-1980 school year, Petitioner engaged in sexual relations with one or more female students of Fort Myers High School. During the 1979-1980 school year, Respondent took a female student off the campus of Fort Myers High School, a "closed campus," during school hours and went to the apartment of a former student where marijuana was smoked in his presence. During the 1979-1980 school year, Petitioner allowed and signed excuses for a female student to cut class and come to class tardy, which contributed to the student's grade being lowered by the instructor. During the 1979-1980 school year, Petitioner smoked marijuana and provided and drank alcoholic beverages with students at his apartment on one or more occasions. Upon being confronted with this information by employees of the Lee County School Board, Petitioner resigned his position. On January 23, 1981, an Administrative Complaint was filed by Education Commissioner Ralph D. Turlington, seeking to suspend or revoke Petitioner's Teaching Certificate based upon the conduct described hereinabove. Although Petitioner was served with the Administrative Complaint, he did not respond. On June 1, 1981, the Education Practices Commission entered a Final Order "permanently revoking" Petitioner's Florida Teaching Certificate based upon the facts set forth hereinabove. The Education Practices Commission concluded that such conduct constituted acts of gross immorality, moral turpitude, and conduct which seriously reduced Petitioner's effectiveness as an employee of the School board. Ralph D. Turlington v. Marc D. Baldwin, Case No. 81-033-RT (June 1, 1981). No appeal was taken from this Final Order. On or about March 31, 1983, Petitioner applied to the Florida Department of Education for issuance of a teaching certificate. The Department of Education denied Petitioner's application and notified him of the denial through a "Notice of Reasons" dated October 12, 1983. Petitioner has competently and capably performed the duties assigned to him as a school teacher at Cardinal Gibbons High School, a private school, since approximately August 1980. There have been no reports or complaints of improper or unethical conduct by Petitioner during his tenure at this private school. The Petitioner has been ranked by his superiors in the top 5 percent-10 percent of all English teachers and has been characterized as a "great teacher." Since his difficulties in Fort Myers, the Petitioner has moved to Ft. Lauderdale, married and maintains a stable lifestyle. The Petitioner has taken responsibility for his past and has consciously set out to change the direction of his life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission denying the Petitioner's application for a Florida Teaching Certificate. DONE and ENTERED this 19th day of June, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1984. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32301 James Curran, Esquire 901 Federal Highway Suite 203 Fort Lauderdale, Florida 33316 Donald L. Greisheimer Executive Director Education Practices Commission Room 125 Knott Building Tallahassee, Florida 32301
