The Issue Petitioner University of Florida seeks to terminate Respondent, pursuant to Rules 6C1-1.007, 6C1-1.008, 6C1-7.018, and 6C1-7.048, Florida Administrative Code, for conduct alleged as follows: Abusing the faculty member-student relationship; Fostering, by example, an environment in which substance abuse is promoted to students whom Respondent supervises; Creating a hostile learning environment; and Retaliation in the course of a sexual harassment investigation.
Findings Of Fact In order to resolve the legal issues herein, it is not necessary to relate all the evidence taken, to relate the stipulated facts verbatim, or to record the entire sequence of events and all the opinions various witnesses expressed of one another. Accordingly, and in accord with Section 120.57(1), Florida Statutes, only material findings of fact have been made.3 In doing so, effort has been made to reconcile the witnesses' respective testimony so that all witnesses may be found to speak the truth, but where conflicts existed, the credibility issue has been resolved on the characteristics listed in Standard Jury Instruction, (Civil) 2.2b.4 Respondent was initially hired at UF on July 17, 1992, in a non-permanent position as a Research Scientist, at its main campus in Gainesville, Florida. Beginning April 1, 1997, and at all times material, Respondent was employed on the main campus as a non-permanent Assistant Professor in the Institute of Food and Agriculture Sciences (IFAS), Department of Fisheries and Aquatic Sciences, at UF. As such, Respondent was assigned teaching, research, and extension duties that include teaching undergraduate and graduate courses and mentoring students. Respondent did not hold tenure, but was in a tenure-earning status for nine years. Respondent is an ichthyologist and was employed in the specialized academic field of wildlife conservation genetics, within a limited professional community comprised of only approximately 100 professionals in the United States. Students, graduate students, and colleagues of Respondent understand that this is a tight-knit professional community and that Dr. Robert Chapman of the University of Charleston, South Carolina, is part of that "elite 100." As with any profession, networking is important to students' career paths. Anna Bass was never a UF student or a student of Respondent. However, she was directly employed by UF from March 1995 to the summer of 2000, as Respondent's lab manager. She worked for Respondent elsewhere prior to that period and has known him since approximately 1992 or 1993. As Assistant Professor, Respondent served as the Major Professor and Thesis Committee Advisor for UF graduate students Joel Carlin, Alicia Pearce, and Luiz Rocha. Currently, and at all times material, Joel Carlin was enrolled as an IFAS graduate student at UF. Alicia Pearce graduated from the UF-IFAS program in May 2001. Katherine Moore was never Respondent's student and never attended UF. However, Respondent had been on Ms. Moore's graduate thesis committee when she was a student at the University of Charleston. She graduated from that university approximately 1998-1999. Ms. Moore has been employed as a biologist at the National Ocean Service in Charleston, South Carolina, since 1990. The student-professor relationship is based on mutual trust and respect, with the student's best interest at heart, for either undergraduate or graduate students. As major professor and chair of thesis committees, Respondent has substantial power over the career paths of graduate students he has advised. Major professors are expected to serve as mentors to their students, providing guidance and acting as professional role models to assist and mold judgment. They are relied upon by students and former students for future educational, job, and research grant references. The graduate student-major professor relationship persists beyond graduation and often endures for a life-time. Graduates often continue original research in cooperation with their mentors and co-author professional research articles with them. Graduates frequently seek the counsel of their mentors for important professional post-graduate decisions. Among his students and colleagues, Respondent has a reputation for partying. His liquor of choice is tequila. He has held what are called "late night lab sessions" with his graduate students in off-campus Gainesville music clubs and bars. Student attendance at these "late night lab sessions" are not required, but it is understood they can be helpful for building both rapport and a career. Respondent also entertains, as do other professors, by serving food and alcohol in his home, so that students may meet and network with visiting speakers/ colleagues in their chosen field(s). During a party hosted by Respondent at his home in May of 1997, he served and consumed beer and tequila in the presence of adult IFAS students. He became inebriated at that party. Respondent, Mr. Carlin, and a visiting scientist, met at a music club in Gainesville and drank alcohol together on one occasion. In early June 2001, Respondent attended an informal going-away party for the same colleague at a Gainesville restaurant with Mr. Carlin and Mr. Carlin's undergraduate girlfriend. Alcohol was consumed and at the end of the evening, the three felt too inebriated to drive legally or safely. However, Respondent drove home and did nothing to prevent the others from driving home. Respondent's explanation for this last occasion was that he was under great emotional stress due to his wife's recent miscarriage. Respondent has consumed alcoholic beverages at off- campus locations at least 3-4 times per year with adult IFAS students whom he academically supervised. In 1998, when Mr. Carlin, an adult, was interviewing on the UF Campus at a morning appointment with Respondent for admission to the UF graduate program, Respondent invited him to meet that night, at approximately 11:00 p.m., with Respondent and his graduate students in a Gainesville establishment where they consumed alcohol. Attendance at the bar was not a quid pro quo for admission, and Mr. Carlin never thought it was. Mr. Carlin remained for the meeting and drinking and was ultimately admitted into the program. Respondent considered his invitation to be a friendly opportunity for Mr. Carlin to talk informally with other graduate degree candidates so that all concerned could determine if the fit was right for Mr. Carlin in the program he wanted to pursue at UF. Mr. Carlin did not object to the drinking, but he felt the late night hour was inconvenient, since he had expected to leave town after his morning interview, and unprofessional, since he never got to discuss dissertation ideas at that time with Respondent. Once, when Respondent had been in Charleston, South Carolina, helping Ms. Moore "finish up [her] Masters," they were at a post-reception party in Respondent's motel room. Other guests were drinking alcohol and smoking pot (marijuana). Dr. Robert Chapman was also present. Respondent and Dr. Chapman settled which of their names should appear first on a jointly- authored professional publication with a "tequila bottle toss." Each professor-author tossed an empty tequila bottle into the motel swimming pool from the motel room balcony. The man whose bottle hit closest to the pool's center, won. The date of this event is not clear, but apparently it occurred while Respondent was employed by UF. There is no reason to suppose UF students were present. Respondent has possessed liquor at off-campus professional conferences in the presence of adult UF students for whom he had some academic responsibility. Several years ago, at a professional reception held for Respondent, he autographed the closure strap at the back of the bra worn by a non-UF undergraduate female, approximately nineteen years old, who was flirting with him in the presence of Ms. Moore. Ms. Moore described the young woman as someone attending her first professional conference who was in awe of Respondent as a "star" in their field. Respondent admitted to making sexually suggestive witticisms to the undergraduate female at the time. No one took him seriously or was offended. Respondent has repeatedly possessed or smoked marijuana, a controlled substance under Florida law, in the presence of others with whom he was professionally associated.5 Use or possession of marijuana on campus offends UF's "drug-free policy." Use or possession of marijuana by a UF faculty member or student anywhere is considered "disruptive behavior" subject to UF discipline. See Rules 6C1-1.008(1)(m) and 6C1-7.048(1)(n), Florida Administrative Code, and the following Conclusions of Law. In June 2001, Respondent used marijuana at Mr. Carlin's house with Mr. Carlin and Mr. Carlin's live-in undergraduate girlfriend present. Respondent's explanation for this was that he was under great emotional stress due to his wife's recent miscarriage. Ms. Moore has observed Respondent smoke marijuana in the presence of students at most of the off-campus professional meetings they have attended over the years from 1992 to the present, but the students she referred-to probably attended universities other than UF. Ms. Pearce has observed Respondent smoke marijuana in the presence of UF students approximately 15 times. She did not specify the locations as on- or off-campus. While she was his student and in his UF office, on the UF campus, Respondent showed Ms. Pearce a "highlighter" pen that he carried in his pocket, which pen had a false bottom for hiding a stash of marijuana. Ms. Bass has smoked marijuana with Petitioner multiple times. She did not specify the location(s) as on- or off- the UF campus. In July 2001, Alicia Pearce was 29 years old. During her UF graduate studies, Respondent had been her major professor and thesis committee advisor. She had received her Master's Degree diploma from UF on May 5, 2001, and UF could not require her to complete any further requirements. (See Finding of Fact 8.) However, according to Dr. Richard Jones, UF Dean of Research, it was expected that after award of their degrees, former graduate students would place their theses in reviewed (preferably peer-reviewed) publications. Respondent had agreed that Ms. Pearce could present her thesis after graduation, due to her relocation to North Carolina. In order to present her paper after graduation, Ms. Pearce submitted her research paper abstract and her registration papers and fees for the American Society of Ichthyologists and Herpetologists (ASIH) Conference in February, 2001, before her graduation from UF. The conference was scheduled to be held on July 5-10, 2001, at State College, Pennsylvania (Penn State). Respondent also attended the July 5-10, 2001, ASIH Conference in the capacity of a UF-IFAS faculty member to, among other purposes, mentor his graduate students, Pearce, Carlin, and Rocha, all of whom were presenting papers at the conference. Respondent was not required to request leave, and did not request leave, from UF to attend the conference. He was on salary from UF while at the conference. Respondent was entitled to request a travel reimbursement from UF, as did Mr. Carlin, but elected not to do so. Respondent has attended the ASIH Conference approximately four times while employed by UF-IFAS. At the 2001 ASIH Conference, Ms. Pearce roomed in a dorm with Luiz Rocha. On July 6, 2001, Respondent used his credit card to purchase dinner and alcoholic drinks at a restaurant/bar in the Penn State Conference Center Hotel for a group of adult colleagues and adult students, including Carlin, Pearce, and Rocha. The ASIH Conference was being held in the hotel. The hotel was considered part of the Penn State campus. During dinner, Respondent made a sexually suggestive comment to Ms. Pearce, who was the only female present, and remarked that it could not be sexual harassment because she was no longer his student. Neither Ms. Pearce nor anyone else took him seriously or was offended. After dinner, Petitioner invited Ms. Pearce to his hotel room, along with another senior colleague, to discuss a tip Respondent had received several weeks earlier that a UF student had fabricated research. Respondent wanted the senior colleague's advice. He wanted Ms. Pearce's perspective because she had been in the lab during a relevant period of time. Their conversation in Respondent's hotel room lasted about an hour. During this period of time, marijuana was present in Respondent's hotel room. Respondent did not admit to bringing the drug with him to the conference, but the fact that marijuana was present in Respondent's hotel room means the contraband drug was in his constructive possession. Respondent admitted holding, sniffing, and/or smoking6 a "token toke" in the hotel during the dates of the 2001 ASIH Conference, and apparently in the presence of Ms. Pearce and the adult colleague. Marijuana use or possession is contrary to Penn State University's drug-free policy and rules. Respondent, his colleague, and Ms. Pearce next attended the official conference reception downstairs in the hotel. Alcohol was served and consumed. Later the same evening, Respondent and Ms. Pearce returned to his hotel room. Both had already drunk a great deal of alcohol and proceeded to drink more. They were observed alone together in the hotel room by Mr. Carlin, whom they sent away. Ms. Pearce became further inebriated during a long conversation with Respondent, which included discussion of her fear of doing the professional presentation coming up at the conference, past lab work, and intimate details of their respective married lives. She then passed out in the bathroom. Respondent knew Ms. Pearce was already partially inebriated and vulnerable before he took her to his hotel room, because she had begun to cause a scene at the conference's reception. Respondent also knew she had a history of irresponsible behavior with regard to alcohol because in May 2000, she and Mr. Carlin, high on alcohol, had telephoned Respondent's home repeatedly at approximately 2:00 a.m., in the morning. They then drove, in that condition, to Anna Bass's house, where they "crashed" for the night. Thereafter, Respondent had told them he was distancing himself from them; told them they should never call him again at that hour; and gave them extra lab work. On July 6, 2001, Respondent assisted Ms. Pearce from the hotel bathroom into one of his hotel room beds. It is undisputed that the couple then kissed and groped each other. Respondent's and Ms. Pearce's versions of what happened next, or how long it took, are fairly similar. Where they differ, the undersigned has balanced Ms. Pearce's candor and demeanor or lack thereof while testifying, her past experiences with marijuana and excessive use of alcohol, her expressed intent to go to the ASIH Conference with the purpose of indulging in heavy drinking, and her inability to recall the evening's events in sequence or in detail, against Respondent's testimony, which is discredited in part by his prior inconsistent statements and admissions. Having assessed their respective versions, it is found that: Respondent removed or dislodged Ms. Pearce's shirt and bra. Their groping progressed to Respondent's massaging Ms. Pearce's breasts and the two of them mutually massaging each other's genitals. At that point, Respondent broke it off and removed himself from the bed. Ms. Pearce then turned over and passed out or went to sleep. Respondent then went to sleep in another bed. About 4:00 a.m., Ms. Pearce awoke, dressed, and left the room, but since the shuttle bus had left, she was unable to return to her dorm. Respondent followed her to the lobby. She wanted to know if they had had intercourse. Respondent felt he was very clear in stating that no intercourse had occurred. However, Respondent's answer seemed non-specific to Ms. Pearce and did not satisfy her that intercourse had not occurred. She was very concerned, because she and her husband had been trying to conceive a child. However, she allowed Respondent to persuade her to return to his room to talk until 7:00 a.m., when the shuttle began to run again, and she then left the hotel. Respondent explained the July 6, 2001, sexual incident with Ms. Pearce as his being emotionally unstable due to his wife's recent miscarriage. Ms. Pearce did not say anything more to Respondent about their sexual incident until later on July 7, 2001, when she asked him not to tell anybody. He agreed that there was "no use in other people getting hurt." They behaved normally to each other in public throughout the next several days and were not alone together. Respondent helped Ms. Pearce prepare to present her paper later that weekend, and she did well for her first presentation on July 10, 2001. She presented Respondent with an autographed copy of her completed thesis after her presentation. The dedication warmly expressed her thanks to him for his mentorship of her. On Tuesday, July 10, 2001, the last day of the conference, after her presentation, Ms. Pearce also filed a criminal complaint with the Penn State University Police Department, alleging Respondent had sexually assaulted her. Respondent was confronted by two police officers and questioned extensively. He cooperated and provided a statement and blood for a blood test. He was not arrested or charged. Back in Gainesville, Respondent spoke to Mr. Carlin by telephone on July 13, 2001. Upon Respondent's inquiry, Mr. Carlin stated that he had learned of the Penn State investigation from Ms. Pearce when he drove her to the airport on July 10, 2001. Both Respondent and Mr. Carlin agreed Mr. Carlin had no first-hand knowledge of the situation. Respondent advised Mr. Carlin to stay way clear of the situation. On Monday, July 16, 2001, Respondent again spoke with Mr. Carlin by telephone. On that date, Respondent told Mr. Carlin that Mr. Carlin's and Luiz Rocha's names had also been of interest to the Penn State Police. Because Respondent said, "How would you like to be accused of rape?" Mr. Carlin could have interpreted this conversation as a threat. He did not. On July 22, 2001, Dr. William Lindberg, Respondent's Department Chairman, submitted his evaluation of Respondent's academic performance for the 2000-2001 academic year, which rated Respondent as overall "exemplary." This was a precursor to Respondent's getting tenure. Dr. Lindberg did not know about the events of the 2001 ASIH Conference when he submitted the evaluation. It is undisputed that Respondent is a "star" in "the elite 100," has published widely, is a popular professor, and has obtained valuable research grants for UF. On July 23, 2001, Ms. Pearce filed a complaint regarding Respondent with UF-IFAS. It was categorized as "sexual harassment." The investigation was cloaked in confidentiality. At the time of his July 13 and 16, 2001, telephone conversations with Mr. Carlin, Respondent could not have known that UF would be investigating him. On August 6, 2001, Ms. Pearce was interviewed by the UF investigator. On or about August 6-8, 2001, Mr. Carlin was interviewed by, and/or provided chronological notes to, the UF investigator and Dr. Lindberg. On August 8, 2001, Ms. Moore was interviewed by the UF investigator and related the "signing of the bra strap" event. On August 16, 2001, Respondent met with Dean Cheek, Dean Jones, Chairman Lindberg, and the investigator. Respondent saw notes on, or was made aware of, all or some of the statements made by those interviewed. He was informed that he probably would be terminated. He also was instructed to be circumspect and respectful in dealing with the situation and potential witnesses. Respondent and Dr. Lindberg shared a car back to their department after this meeting. On the ride, Respondent asked Lindberg what he should do about the paper he was co- authoring with Pearce. Lindberg told him that if he did not have much invested in it, the high ground was to step away. Lindberg did not recall Respondent's also asking what he should do about papers he co-authored with Carlin and Moore. Mr. Carlin was interviewed by Dr. Lindberg and the investigator again after Respondent met with the Deans. At hearing, Ms. Pearce presented speculations, but no credible evidence, that Respondent had done, or planned to do, anything to her in retribution for her sexual harassment charge. As of the disputed-fact hearing, Respondent had not removed his name from their joint paper. On August 17, 2001, Respondent telephoned Ms. Moore and told her to remove his name from the publication they had recently co-authored and were preparing for publication. He asked her never to contact him again because it was painful for him to talk to someone who told stories about him and he was tired of her complaints about her employer, who was a friend of his. Ms. Moore considered Respondent's telephone call to constitute her "professional excommunication." Respondent's withdrawal of his authorship created an awkward situation for Ms. Moore that necessitated her sending a letter of explanation to the publisher to clarify that Respondent's withdrawal was not due to a disagreement regarding her research results. The paper will be published anyway. Ms. Moore contacted Chairman Lindberg on August 23, 2001, and complained about Respondent's action and expressed her fear of further professional reprisals from Respondent. Dr. Lindberg agreed that if the withdrawal of Respondent's name became an issue with the publisher, he would write to the publisher for Ms. Moore and explain the situation in general terms. On August 14, 2001, Anna Bass was interviewed by the UF investigator. On August 19, 2001, Ms. Bass sent an e-mail message to Mr. Carlin which amounted to a diatribe against him and Ms. Pearce for speaking to the UF investigator. On August 28, 2001, a Notice of Proposed Dismissal was issued against Respondent by UF. On September 14, 2001, after learning that Respondent's dismissal had been proposed, Ms. Bass contacted Chairman Lindberg and charged Mr. Carlin with sexual harassment against her which allegedly occurred more than a year previous, when he and Ms. Pearce "crashed" at her home. (See Finding of Fact 34.) Ms. Bass denied that Respondent put her up to filing these belated charges. Respondent denied asking anyone to retaliate against, or speak to, Mr. Carlin for the purpose of preventing or altering the information Mr. Carlin gave in interviews with the UF investigator or UF authorities or to discredit his information. Respondent further testified that he did not ask Dr. Robert Chapman to author any correspondence related to the investigation. However, he admitted discussing his situation under the sexual harassment charges with Dr. Chapman. Respondent had problems with Mr. Carlin previous to the current investigation. On one occasion, he had to request that Mr. Carlin not annoy his female lab assistant. Respondent had previously disciplined Mr. Carlin for making annoying late night telephone calls to Respondent's home. (See Finding of Fact 34.) At the 2001 ASIH Conference, Respondent had approached Mr. Carlin about whether Mr. Carlin wanted to remain in competition for the Stoye Award, because of some concerns over the eligibility of his research. Mr. Carlin and Respondent have different understandings of what was involved in this discussion, but Mr. Carlin did not remove his name and Respondent did not interfere with that choice. Mr. Carlin went on to win the prestigious award. Some other members of "the elite 100" had also had a problem with Mr. Carlin concerning access to a limited supply of endangered species samples he and another graduate student needed. Mr. Carlin and the other researcher were in a race to publish their respective dissertations first. Dr. Robert Chapman was aware of the controversy. On Friday, September 14, 2001, after hearing about Respondent's proposed dismissal from employment, Dr. Chapman and Respondent had a telephone conversation during which they discussed Mr. Carlin. Respondent expressed his frustration at the complaint filed by Ms. Pearce and accused her of "filing false claims" against him. Respondent stated that Ms. Moore had made an unflattering anecdote and "contributed a story that portrayed [Respondent] in a negative light." Respondent also stated that Mr. Carlin had alleged that Respondent had harassed him. Dr. Chapman was then critical of the "ethics" of Mr. Carlin and described him as "shiftless." On Friday, September 14, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin expressing anger and shame and stating in part that, "I fear that your career is in severe jeopardy. No one I have talked to will hire you after this." These comments of Dr. Chapman were directed to the rare species sample controversy but mixed in with a diatribe about Respondent's situation, as if they were part of the same complaint. On Saturday, September 15, 2001, Dr. Chapman sent an e-mail message to Jimmy Cheek, UF-IFAS Dean of Academic Programs, accusing Mr. Carlin of aiding and abetting a shameful assault upon Respondent and questioning Mr. Carlin's "honor and integrity," referring to Mr. Carlin as "a slimy worm." In this same e-mail, Dr. Chapman stated that "Ms. Moore is a thief," and a radical feminist who was out to get Respondent. Apparently, Dr. Chapman sent a similar missive to Dean Jones. Respondent had provided the deans' names to Dr. Chapman and did not dissuade him from writing them. On Sunday, September 16, 2001, Dr. Chapman sent an e-mail message to Mr. Carlin, apologizing for writing him in anger but not for what he had written to him on September 14, 2001. He told Mr. Carlin that his "first allegiance is to the professor" and advised him that "[I]nterviews with administrators are not an obligation. You have the right to decline and only the courts can force it." Dr. Chapman also stated that Mr. Carlin should talk with Respondent "about whether he should continue to serve as your professor" and further advised him to "take a low profile." While stating he would not circulate rare species sample rumors beyond those persons who knew of the rare species sample controversy before, and that he would be professional if asked about Mr. Carlin's competence, Dr. Chapman also stated he would volunteer nothing for Mr. Carlin. Dr. Chapman is a former employment supervisor of Mr. Carlin who strongly recommended him for admission to UF's graduate school on December 16, 1997. Mr. Carlin now feels he is unable to list Dr. Chapman as a reference because he questions Mr. Carlin's intellect and moral character and will accordingly give Mr. Carlin bad references rather than good ones. Mr. Carlin has great concern that Respondent has ostracized and vilified him for his role in the UF complaint review process. Mr. Carlin informed Chairman Lindberg that he fears his career is over and he has lost his place in his chosen academic field. Mr. Carlin also speculates that Respondent will now attempt to have his Stoye Award revoked, but there is no evidence Respondent has made any move in that direction to date. After Mr. Carlin was interviewed in the complaint review process, Respondent substituted his name for Mr. Carlin's name as the "corresponding author" on one of their current joint research publications which had been pending since June. He did not remove Mr. Carlin's name as first author. Changing the name of the corresponding author is not an unusual occurrence with regard to academic publications. In this case, it may benefit Mr. Carlin in getting published, because Respondent is friends with the publisher. However, the effect of the name-switch is that Mr. Carlin has lost control over the correspondence, putting Respondent in a position to delay or take the publication out of sequence for printing, if he chooses to retaliate against Mr. Carlin. On September 18, 2001, a Predetermination Meeting was held at Respondent's request. On October 8, 2001, UF issued its decision to dismiss Respondent effective October 10, 2001. Even after termination, sometime in December, 2001, Respondent was cooperating with input for a second publication he and Mr. Carlin co-authored. He has, however, begun to investigate the data behind Ms. Pearce's and Mr. Carlin's papers presented at the 2001 ASIH Conference. According to Chairman Lindberg, who testified by deposition, Respondent breached his professional ethics and student mentoring responsibilities by his behavior at the ASIH conference with Ms. Pearce. According to Dean Jones, Respondent's conduct at the ASIH Conference was contrary to UF-IFAS expectations of a responsible faculty member's interactions with students and abused the faculty member-student relationship.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the University of Florida enter a final order ratifying its termination of Respondent effective October 10, 2001. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 31st day of May, 2002.
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 31st day of July, 2017.
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent from his employment contract.
Findings Of Fact The School Board is duly constituted and charged with the responsibility and authority to operate, control and supervise the public schools within Manatee County, Florida. Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has the authority to discipline employees. § 1012.22 (1)(f), Fla. Stat. At all times relevant to this proceeding, Respondent was employed by the School District. Mr. Gagnon has been in the education field for approximately 23 years, and has been with the School District since 2002. Mr. Gagnon served as an assistant principal at Lakewood Ranch High School and as principal at Palmetto High School, both of which are in Manatee County. Mr. Gagnon was the principal at MHS beginning with the 2007-2008 school year. Mr. Gagnon served as the MHS principal until he transitioned to the position of assistant superintendent for Curriculum and Instruction for the School District in January 2012. Mr. Gagnon served as the interim superintendent for approximately one month in September/October 2012 and then returned to the assistant superintendent position when another person was appointed interim superintendent. In 2005 the School District posted a position for a specialist in the OPS to investigate alleged School District employee misconduct. The then superintendent wanted to establish a standardized method of investigating employee misconduct. Ms. Horne interviewed for the position, and was appointed as the first OPS specialist. As there were no School District policies or rules in place when she started, Ms. Horne assisted in writing the School District’s OPS policies. Sections 39.201 and 39.202, Florida Statutes, are incorporated into the School District’s policies and procedures as Policy 5.2(1), Policies and Procedures Manual, School Board of Manatee County (2013), which provides: Mandatory Duty to Report Suspected Child Abuse. All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it. Employees or agents so reporting have immunity from liability if they report such cases in good faith. This includes suspected child abuse of a student by an employee. Ms. Horne provided the training on this policy and other policies to School District employees. As the OPS investigator, Ms. Horne was to “investigate alleged employee misconduct and other matters as assigned” to her by her supervisor. Ms. Horne never had the authority to determine whether or not someone had engaged in misconduct or to make any recommendations as to what may or may not have happened. Her role was to simply gather the information, prepare a report of her findings, and provide that report to her supervisor. In November 2012, Mr. Martin was the School District’s assistant superintendent for District Support, and Ms. Horne’s direct supervisor. During her eight-year tenure as the OPS specialist, Ms. Horne investigated over 800 cases of employee misconduct. The School District uses a progressive discipline model for its employees. Should an employee exhibit behaviors that could be considered inappropriate or misconduct, the School District has a step-by-step method of taking disciplinary action, from simply talking with the employee up to termination of employment. If it is an egregious action, such as sexual conduct with a student, immediate termination is an option. The discipline begins on-site by the site-based managers where the incident occurs. Those site-based managers could have that simple conversation, and if need be, it could progress to a verbal directive, a memorandum of conference, and/or a written reprimand. Site-based managers include principals, assistant principals, directors, and assistant directors.3/ In those instances where the disciplinary action could lead to days without pay or termination, actions that could only be taken by the School Board, OPS would open an investigation. During the first two weeks of November 2012, Mr. Rinder was approached by several MHS teachers regarding concerns for their students. When Mr. Rinder spoke with Mr. Sauer, MHS’s principal, about those concerns, Mr. Sauer asked Mr. Rinder to type up the list (Rinder’s List) and give it to Mr. Sauer. Mr. Sauer, in turn, forwarded Rinder’s List to the OPS. Rinder’s List: [1.] One staff member reported a phone call to a female student during class. The student was upset by the call and told the staff member that Mr. Frazier had asked her if “she had gotten her period and did she need him to go to the drug store for her.” [2.] One staff member reported that Mr. Frazier repeatedly called for a female student during class. When asked if it was important, Mr. Frazier said “yes”. [sic] When the staff member asked the student what the problem was, the answer was “My mom wanted to take me to lunch and he helped me do it”. [sic] [3.] Male student was failing a core class. He told the teacher that “Frazier told me that he will change the grade”. [sic] [4.] A female student was observed getting into Mr. Frazier’s vehicle after school hours and was transported. [5.] Female student told a staff member that she overheard students talking about several meetings in the park late at night with Mr. Frazier. She stated that Mr. Frazier placed and [sic] empty water bottle between her legs as she was walking down the sidewalk. [6.] Female student was observed sitting on Mr. Frazier’s lap eating cake off his fork. [7.] Female student reported to a staff member that Mr. Frazier made a comment to a student in the hall that he had put her on skype [sic] and she took a picture and has it saved on her cell phone. She is scared that he will retaliate if she tells. [8.] Female student told a staff member that Mr. Frazier had made comments to her at the Tiki Bar that she was old enough to be there and they could talk. When she refused to talk with him, she started having issues with Mr. Frazier at school. She transferred to LIFE program to get out. [9.] Female student was reported to a staff member by several students who stated that she was having a relationship with Mr. Frazier. She transferred schools. This conversation was overheard by two teachers in the hall. [10.] The Math Department this week was discussing Mr. Fraziers [sic] questionable activities. Upon receipt of Rinder’s List, Ms. Horne was directed to open an investigation into the allegations contained therein. The subject of the investigation was an MHS parent liaison4/ and assistant football coach named Roderick Frazier. In a very general sense, the allegations involved misconduct by a teacher. Rinder’s List initiated the Frazier investigation. However, Rinder’s List contains blatant hearsay which cannot form the basis for a finding of fact without corroboration. There was no testimony provided by any students mentioned in items 2, 3, 5 (first sentence), 7, 8, or 9 above; hence, it is impossible to verify what occurred. Item 10 merely indicates that an entire department at MHS discussed “questionable activities” by an individual, but it provides no specific activities. There was no credible, non-hearsay evidence in this record to substantiate any of these allegations (items 2, 3, 5 (first sentence), 7, 8, 9 or 10). On November 14, 2012, an email with an attached letter from then-Superintendent David Gayler, was sent to Mr. Sauer around 8:40 p.m., advising him that Mr. Frazier was to be placed on paid administrative leave (PAL) on Thursday, November 15. Mr. Sauer notified Mr. Frazier appropriately. The School Board’s policy regarding placing an employee on PAL is dependent upon whether there is a potential for harm to any student and/or the employee could incur a suspension or termination from employment. Due to an on-going investigation at a different school, Ms. Horne did not arrive at MHS to begin the investigation until the afternoon of Thursday, November 15. Ms. Horne first interviewed Mr. Rinder, as Rinder’s List did not contain any names of teachers or students who were allegedly involved. Upon obtaining the names of the teachers who had expressed concerns, Ms. Horne interviewed most of the teachers on November 15. By the time Ms. Horne completed her teacher interviews, the students had been dismissed from school and were no longer available. At some time, Mr. Rinder observed a female student getting into Mr. Frazier’s car after school (Rinder’s List, Item 4). Mr. Rinder was not alarmed by this sight, but merely thought it was Mr. Fazier’s son’s girlfriend getting a ride. There was no testimony that Mr. Rinder ever brought this information to Mr. Gagnon’s attention. Ms. Aragon brought two concerns about Mr. Frazier to Respondent’s attention: 1) she thought that girls were sitting too close to Mr. Frazier in golf carts at MHS; and 2) Mr. Frazier had called her classroom telephone to talk with a female student. Neither Ms. Aragon nor Mr. Gagnon were absolutely certain as to when these concerns were brought to Mr. Gagnon’s attention: Ms. Aragon thought they were brought to his attention during one conversation, and Mr. Gagnon thought there were two separate conversations approximately a year apart, based on the actions that he took to address them. Mr. Gagnon’s testimony is more credible. Upon being told of the golf cart issue, Respondent immediately went to the MHS courtyard and observed Mr. Frazier with a female student sitting in his golf cart. At the same time, Respondent observed two other assistant principals with students of the opposite sex sitting in their golf carts. Respondent addressed Mr. Frazier first, and then issued a directive to his discipline staff that no one was to allow a student to just sit in a golf cart. Respondent directed that if there was a legitimate reason to transport a student, that was fine, but students were no longer to just sit in the golf cart. With respect to the telephone incident (Rinder’s List Item 1), Mr. Frazier called Ms. Aragon’s classroom and bullied his way to speak with the female student. After the student hung up the phone with Mr. Frazier, she appeared to be upset. Ms. Aragon immediately questioned the student, and Ms. Aragon understood that Mr. Frazier had inquired about the student’s menstrual cycle. Ms. Aragon thought it was “inappropriate” for Mr. Frazier to be speaking with a female student about her menstrual cycle, but Ms. Aragon testified that she did not know if the conversation impacted the student’s day. Ms. Aragon was not privy to the actual conversation between the student and Mr. Frazier, and the student with whom the conversation was held did not testify. The actual telephone conversation is hearsay. Ms. Aragon sought guidance from the teacher’s union president as to what to do. When Ms. Aragon spoke with Mr. Gagnon about Mr. Frazier’s telephone call, Mr. Gagnon immediately turned the issue over to an assistant principal for investigation. Based on the report from the assistant principal, Mr. Gagnon was not concerned that anything inappropriate or sexual was happening.5/ At some point in time, Ms. Coates overheard two female students comment about Mr. Frazier. Although Ms. Coates asked the students to tell her directly the basis for their comment, the students declined. (Neither student testified at hearing.) Shortly thereafter, Ms. Coates told Respondent the students’ comment. Ms. Coates heard Mr. Gagnon respond that something was going around on Facebook. Mr. Gagnon did not remember Ms. Coates telling him of the students’ comment. However, Mr. Gagnon routinely reviewed the disciplinary records for the three parent liaisons and was satisfied that Mr. Frazier was not showing favoritism in his discipline to one group of students over another. It is not uncommon for students to perceive that a teacher is showing favoritism towards a student or group of students. At the conclusion of the teacher interviews on November 15, Ms. Horne understood that the allegations had occurred a year or two before they were reported in Rinder’s List. This thought process was reinforced when Ms. Horne met with some of the MHS administrators in Mr. Sauer’s office where they had a telephone conference with Mr. Martin. Following the telephone conference, Ms. Horne returned to the School District’s main office and again conferred with Mr. Martin for directions. On November 15 or 16, 2012, Ms. Horne had a brief conversation with Mr. Gagnon at the School Board building. Mr. Gagnon asked about the Frazier investigation. Ms. Horne responded that the only issues she was hearing had previously been addressed, and that Ms. Horne would be returning for other interviews. Additionally, Mr. Martin had a brief conversation with Mr. Gagnon about the Rinder List allegations. Mr. Gagnon maintained that the allegations were old and had been dealt with appropriately. Ms. Horne shared with Mr. Martin that the Rinder List allegations were old and had been dealt with previously. Based on this information, Mr. Martin, in his sole discretion, determined to remove Mr. Frazier from PAL on November 16, 2012, and return him to work. Ms. Horne was surprised by this, as her investigation was incomplete. Ms. Horne interviewed Mr. Frazier as well as one other teacher, on November 16, 2012. Although Ms. Horne had the name of an alleged victim, Mr. Martin directed her not to interview that student at that time. In January 2013, a former MHS female student, D.K., wrote a letter to MHS alleging that Mr. Frazier did various inappropriate acts towards her while she was a student at MHS during the 2010-2011 and 2011-2012 school years. In her letter, D.K. stated that she became close to Mr. Frazier during her two years at MHS. D.K. met Mr. Frazier at a park near her home, but during her second year at MHS (2011-2012), Mr. Frazier “started being weird with [her] and saying inappropriate things to” her. D.K. admitted that she frequently rode in Mr. Frazier’s golf cart around the school, and that Mr. Frazier put a water bottle (Rinder’s List Item 5, second sentence) in between her legs (between her knees and crotch) as they were sitting in the bleachers at the softball field and while sitting in a golf cart. D.K. came forward with the letter because she had heard of the Frazier investigation and that it was being closed. Several days after D.K.’s letter was received in OPS, Ms. Horne interviewed D.K., who was accompanied by her mother. Ms. Horne was unable to confirm D.K.’s credibility completely because Ms. Horne left OPS prior to the conclusion of the Frazier investigation. The most disturbing part of D.K.’s testimony came when D.K. admitted, and Ms. Peebles confirmed, that during the 2010- 2011 school year, Ms. Peebles walked into Mr. Frazier’s office unannounced and observed D.K. sitting on Mr. Frazier’s lap holding a piece of cake (Rinder’s List Item 6). Ms. Peebles immediately instructed D.K. to get off Mr. Frazier’s lap and to sit in a chair on the other side of his desk. Mr. Frazier appeared to be unfazed by Ms. Peebles entering his office unannounced and witnessing this scene. Mr. Frazier proceeded to handle the disciplinary matter that Ms. Peebles had brought to him. Ms. Peebles reported the observation to an assistant principal, Matthew Kane, but not to Respondent. Ms. Peebles did not believe there was abuse on-going, but thought it was “not appropriate” for Mr. Frazier to have a student sitting on his lap. D.K. testified that “after he [Mr. Frazier] got in trouble he started getting me [D.K.] in trouble for things that I had been getting away with the whole time I was there [at MHS].” D.K. did not provide a time-frame or what “trouble” Mr. Frazier had gotten her into while D.K. was at MHS, and no evidence was provided otherwise. Further, D.K. never told Mr. Gagnon of any issues involving Mr. Frazier. D.K. was enrolled at a different local high school when Mr. Frazier was placed on PAL. Ms. Peebles relayed another issue regarding Mr. Frazier; however, it involved hearsay and was not corroborated by the student who initially reported the issue to Ms. Peebles. The absence of direct, non-hearsay testimony precludes a finding of fact as to that issue. In late January 2013, Ms. Horne transferred to an assistant principal position at a school district elementary school. Both Ms. Horne and Mr. Martin confirmed that the Frazier investigation had not been completed when Ms. Horne left OPS. Ms. Horne had not submitted a written report to her supervisor which would have signaled the completion of the Frazier investigation. The specialist position in OPS remained vacant until July 2013 when Mr. Pumphrey assumed the position. Mr. Pumphrey confirmed that there “had been an ongoing investigation both at the School District level and law enforcement surrounding Rod Frazier.” In an effort to gain speed in his investigation, Mr. Pumphrey reviewed the Frazier investigation file and became aware that the School District “had stalled their investigation pending the outcome of the criminal investigation.” Mr. Pumphrey reviewed Mr. Frazier’s personnel file and determined there was “no documentation of any discipline to Mr. Frazier.” Additionally, Mr. Pumphrey pulled all the published information including media accounts and police reports, and reviewed them. As Mr. Martin had been instrumental in hiring Mr. Pumphrey, the two spoke several times “because this thing [the Frazier investigation] was all over the place.” Several days after re-starting the Frazier investigation, Mr. Pumphrey expressed to the superintendent his concern about the close proximity of Mr. Pumphrey’s office to that of Mr. Gagnon and requested that Mr. Gagnon6/ be placed on PAL. The superintendent did so. During the course of the Frazier investigation, Mr. Pumphrey considered that Mr. Gagnon’s actions or inactions during the course of the Frazier investigation constituted “administrative negligence and/or intentional misconduct.” Mr. Pumphrey broadened the Frazier investigation to determine whether district administrators “had prior knowledge of complaints by female students and faculty regarding inappropriate conduct involving Frazier and, if so, why the complaints were not timely addressed.” There is no credible, non-hearsay evidence in the record to substantiate that Mr. Gagnon failed to investigate or report inappropriate conduct by a faculty member. When apprised of questionable or suspect conduct, Mr. Gagnon took the steps necessary to inquire. The absence of direct, non-hearsay testimony precludes a finding that Mr. Gagnon acted in the fashion alleged in the administrative complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 30th day of June, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 30th day of June, 2014.
Findings Of Fact At approximately 11:30 p.m. on the evening of October 9, 1982, the Respondent Erwin McQuown, in the company of the Respondent Richard Scarberry and Scarberry's wife, arrived outside the Brass Rail Restaurant in Largo, Florida. Mr. McQuown exited the vehicle, leaving the Scarberrys inside with the intention of entering the restaurant to see if several out-of-town police officers and a local campus police officer named Sue Wiley, whom they had referred to this place earlier, were inside. Mr. McQuown has been a policeman for over thirteen years and has been employed by the Pinellas County School Board as a campus policeman for over eight and a half years. Mr. McQuown had been to the Brass Rail Restaurant approximately ten times prior to the evening in question and was known to the owner to be a policeman. As he approached the entrance, Mr. McQuown saw a white male individual subsequently identified as Douglas Parks lying on his back on the ground outside the entrance to the restaurant surrounded by a group of other individuals, one of whom was the owner of the Brass Rail, Izaac Azoulay. At this point, Mr. Azoulay, who had just been involved in a dispute with Mr. Parks over Parks' attempted reentry into the Brass Rail after being ejected, requested Respondent McQuown to talk to Parks and show Parks his police badge. McQuown agreed and advised Parks that he, McQuown, was a police officer, that Parks should leave, and that Azoulay could have him arrested if he did not leave. At no time did McQuown state that he, McQuown, would arrest parks. Notwithstanding McQuown'S advice, Parks, who was substantially intoxicated at the time, again attempted to get back into the restaurant and attempted to pass by McQuown. At that time, it appeared to McQuown that Parks and Azoulay were again going to get into a physical altercation, so he inserted himself between Parks and Azoulay in the door. At this time, Respondent Scarberry, who had observed what was transpiring from the McQuown car, where he had been waiting with his wife, recognizing that his friend McQuown could possibly be getting into a dangerous situation, came over to the area and interjected himself by grabbing Parks by the shoulder, spinning him around, and giving him a shove, telling him to get out of the area. Parks resisted, and Scarberry again grabbed him, gave him a push, and told him to "get the hell out of [there]." At no time did either McQuown or Scarberry knock Parks to the ground, strike him, beat him, kick him, or in any other way molest him other than the push by Scarberry that was mentioned above. On his own two feet and without any assistance, Parks crossed the Brass Rail parking lot to Roosevelt Boulevards a distance of approximately 75 feet, without either McQuown or Scarberry accompanying him; crossed Roosevelt Boulevard; and went to the Pix Quick store on the other side of the street. In the meantime, McQuown and Scarberry went into the lounge with Scarberry's wife and sat down at a table. During their second drinks, the owner came over and said there was a deputy sheriff outside who wanted to talk to McQuown. McQuown went outside and talked with Pinellas County Deputy Sheriff Janice Shine, who was accompanied by Pinellas County Sheriff Department Sergeant David Van Leeuwen. Shine and Van Leeuwen advised McQuown that Parks had accused him of assault and battery. In response to that, McQuown advised the deputy that there were additional witnesses inside who would be willing to discuss with them the alleged assault. McQuown did not, however, tell the deputy that Respondent Scarberry had in fact pushed Parks. In response to his comment about other witnesses, Sergeant Van Leeuwen said that he should bring them to court with him. Van Leeuwen also advised McQuown that this matter would be reported to the Pinellas County State Attorney and that he, McQuown, should either orally or in writing report the incident to his supervisor. When the deputies left, McQuown went back into the restaurant and discussed the matter with the Scarberrys. Respondent McQuown was not arrested; and, in fact, he did not report the incident to his supervisor the following day, Sunday, October 10, primarily because he did not think that it was of a serious nature that needed reporting. On Monday, October 11, he was home sick with a sinus attack. However, while he was resting at home, Respondent Scarberry brought over a copy of the deputy's report concerning the incident; and when McQuown read it, he immediately went out and hired an attorney. However, even on October 11, he did not report the incident to his supervisor because after having discussed the matter with his attorney, his attorney advised him not to say anything about the incident until he could get back with him further. On Tuesday, October 12, 1982, Respondent McQuown was called into his supervisor's office at the Pinellas County School Board and asked about the incident in question. At first, he declined to answer, upon advice of counsel, and requested an opportunity to speak with his attorney. This was given him; and when he ultimately did get in contact with his attorney, his attorney advised him to go ahead and tell the authorities what they needed to know, which McQuown in fact did. That same day, Deputy Chief Joe Seraca and Officer M. A. McCrimmon, both of the Pinellas County School Board campus police, initiated an internal affairs investigation of the alleged incident at approximately 11:30 a.m. The investigation was to continue for several days. However, after talking with both Respondents Scarberry and McQuown, Deputy Chief Seraca advised them that they should agree to go on leave or vacation until the matter could be fully investigated and resolved. Both agreed to take time off, both gave their deputy cards directly to Deputy Chief Seraca, and turned in their vehicles and equipment until further notice. On October 13, 1982, the Assistant Superintendent, Mr. Tom Dillon, based on a memorandum relating to the incident prepared that same day by Chief Gene Howell, recommended to Dr. Scott Rose, the Superintendent of Schools, that both Respondents be suspended without pay effective October 20, 1982, and that they be recommended to the full school board for dismissal from employment with the Pinellas County Schools. Chief Howell's memorandum, referred to above, outlined eight separate "violations" in the conduct of both McQuown and Scarberry in that McQuown used poor judgment in intervening in the altercation, that he attempted to obstruct the proper administration of justice by not divulging all information pertinent to the investigation, that Scarberry committed a battery on an intoxicated person, that Scarberry did not consider the safety of an intoxicated person by ordering him to leave the area and allowing him to cross a major highway, that Scarberry failed to come forward and relate his involvement in the matter, that Scarberry improperly handled evidence and diverted it for personal use, that both officers failed to notify their supervisor, and that both officers conspired to make a mockery of the justice process by intending to allow the investigation to focus on a charge of battery against McQuown and a subsequent coming forth by Scarberry to discredit the State Attorney. There is no evidence of any conspiracy of any nature and certainly not that as alleged in this memorandum. With regard to Officer Scarberry and the radio, when, on October 12, 1982, Officer Scarberry was asked to turn in his state car, which he had been using in the performance of his duties, it was found to contain in the trunk thereof a small AM/FM radio which was subsequently identified to be a piece of evidence in an investigation run by Officer Scarberry from nine months previously. At the time the investigation was underway, Scarberry placed the evidence in the trunk of the car and, as he relates, logged it into the file in accordance with the procedures in existence at that time. However, subsequent to the time of the confiscation of the property, sometime in May 1982, the policy regarding evidence was changed to require evidence to be logged with proper paperwork and turned in to the evidence custodian. This policy was to pertain also to all evidence currently in the custody of investigating officers. This piece of evidence, along with two boxes of other evidence relating to another offense, had been in the back of Scarberry's state car for a substantial period of time. At the time of the changeover, the two boxes of other evidence were properly released to school board officials, since the property in question was school board property. Scarberry forgot to take the radio back to the person to whom it belonged or to turn it in at the time of that changeover. He admits he should have turned it in, that he overlooked it, and that he forgot about it. Both Scarberry and McQuown have received excellent evaluations by their supervisors over the past seven or eight years. Scarberry has never had any disciplinary action taken against him in the entire time he has been with the Pinellas County School System. McQuown had one minor reprimand several years ago for a minor offense. Aside from that, he has a completely clean record, and both individuals have the high esteem of their co-workers, principals, and deans throughout the Pinellas County School System.
Recommendation As to Respondent McQuown, from the foregoing it is RECOMMENDED: That he be reinstated in his former position as of October 20, 1982, with reimbursement of back pay from that date. As to Respondent Scarberry, from the foregoing it is RECOMMENDED: That he he reinstated in his former position as of October 20, 1982, with back pay from that date, but that he be administratively reprimanded for failure to inventory and report his possession of the AM/FM tape player/radio. RECOMMENDED this 16th day of February, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 16th day of February, 1983. COPIES FURNISHED: Usher L. Brown, Esquire Associate General Counsel School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518 Brian C. Harrington, Esquire Fisher & Sauls, P.A. 501 Florida National Bank Bldg. Post Office Box 387 St. Petersburg, Florida 33731 Ky M. Koch, Esquire Bauer & Koch 15201 Roosevelt Boulevard Suite 102 Clearwater, Florida 33520 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518
The Issue The issue in this case is whether the termination of Respondent's employment by Petitioner is justified and consistent with the requirements of the Collective Bargaining Agreement between Petitioner and the Sarasota Classified/Teachers Association (of which Respondent is a member).
Findings Of Fact Petitioner is the Sarasota County School Board, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Sarasota County. The School is a public high school established in 2001. It is located at 6400 West Price Boulevard, North Port, Florida. The school had a student body in excess of 2,600 students at the beginning of the current (2008-2009) school year, but that has declined to 2,500 as of the date of the final hearing in this matter. Respondent, Ronald Davenport, was employed at the School as a campus security monitor (also known as a security aide) from 1988 until December 5, 2008. Respondent is an African-American male. Respondent is a "classified" employee under the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and the District (the "Collective Bargaining Agreement"). On December 5, 2008, Respondent was reassigned or transferred from the School to McIntosh. The reasons for the transfer will be more fully discussed below. During Respondent's tenure as a security monitor at the School, he received a number of written disciplinary letters or memoranda. Under the District disciplinary policies, written reprimands are issued only after verbal reprimands have been issued and proven ineffective. Respondent's discipline to-date has included the following: On November 22, 2004, Respondent was given a Record of Verbal Reprimand concerning his failure to responsibly monitor students while on duty. A written reprimand was given to Respondent on January 4, 2005, concerning improper contact with students and work performance. In April 2005, Respondent was suspended without pay for a period of three days. The basis of the suspension was Respondent's insubordination to superiors. In January 2006, Respondent was again suspended without pay, this time for a period of ten working days. This suspension was based on Respondent's failure to perform his work responsibly, use of school computers for personal reasons, and insubordination. A letter of instruction (which is not technically a disciplinary action) was given to Respondent on April 12, 2007, concerning his actions while driving on campus. Respondent received other verbal reprimands and letters (memoranda) of instruction in addition to those set forth above. It is noted that two suspensions for a single employee is very unusual; grounds for a second suspension would normally warrant termination of employment. However, Principal Kenney stated that at the time of the second suspension, he wanted to give Respondent another opportunity, even though dismissal was probably warranted. (Likewise, the aforementioned transfer from the School to McIntosh was another effort by Kenney to sanction Respondent without resorting to termination of employment.) In the Fall of 2008, a student at the School spat water on Respondent. The student received a three-day suspension and a deferred expulsion1 for his actions. A few weeks later, a different student spat water on a Caucasian security monitor. That student received a five-day suspension and a deferred expulsion for the remainder of the year. The student in the second incident, however, had a disciplinary history while the student who spat on Respondent did not. That is the reason for the slight disparity in punishment. Respondent was unhappy about the second student being treated more harshly and surmised that the reason for the difference in punishment was that he (Respondent) was African- American while the other security monitor was Caucasian. That being the case, Respondent contacted Mr. Trevor Harvey, president of the local NAACP chapter, to complain. Harvey contacted Principal Kenney, and the two agreed to meet at Kenney's office on December 5, 2008, to discuss possible racial issues at the School. On December 4, 2008, Respondent was observed handing out a note or flyer to students. The flyer, which was copied from a handwritten original, included the following bullet points: An instruction asking the reader to make a copy and tell a friend about the contents of the flyer. A request to have parents and students call various news agencies (whose telephone numbers were listed at the bottom of the flyer) and request that reporters be sent to the School the following day (December 5) to attend an NAACP meeting at the School. A statement of the writer's belief that the District and the School promote intolerance, bias, and double standards concerning people of color. A statement specifically addressing Respondent's confrontation with a student earlier in the year. Another statement urging the reader to submit their own concerns to administration that day or early on the following day. Respondent denies writing the flyer or having anything to do with its distribution to students. However, he does admit distributing copies of the flyer to other employees at the school, including Jacqueline Pollard, a teacher, and Wesley Johnson, the senior head custodian at the School. Both Pollard and Johnson are African-Americans. Other employees, including Mr. Johnson, saw Respondent handing out a sheet of paper to students on December 4, 2008, which they presumed to be copies of the flyer. The flyer had been discovered by administrative staff at the School on December 4, 2008, after an altercation between some girls on campus. While the girls were being questioned in the administrative offices, one of them provided staff with a copy of the flyer. The student did not know from whom she had received the flyer, but said it was being distributed around campus. At least one teacher told the administrative office that a student in her class received the flyer from Respondent. Respondent was seen distributing an unidentified sheet of white paper to students on the afternoon of December 4, 2008, and the morning of December 5, 2008. Respondent maintains that all he gave students was a handwritten Christmas greeting which said, "Happy Holidays and [peace sign] on Earth. God bless Obama & God bless the U.S.A. Mr. Ron, Security." On the morning of December 5, 2008, Respondent was observed by Assistant Principal Wilks talking to a group of students. Wilks heard Respondent tell the students to go to the Performing Arts Center ("PAC") for the purpose of attending the NAACP meeting. Many of the students then headed toward the PAC. Wilks then redirected the students toward their assigned classrooms. Respondent denies he told students to go to the PAC for a meeting; he says he directed them all to return to class. Based on Wilks' interaction with students shortly thereafter in the area of the PAC, her testimony on this point is more credible. After hearing Respondent talking to the students, Wilks went to the PAC, which is located at the front of the campus. Several groups of students showed up at the PAC and said they wanted to attend the NAACP meeting. They were told that there was no meeting at the PAC that day in which students were authorized to attend. One of the students advised Wilks that her "uncle" had told her to go to the PAC for the meeting. Respondent concedes that the student was referring to him (although she is not actually his niece). Respondent denies telling her to go to the PAC for a meeting. There was in fact a meeting at the School on December 5, 2008, between the principal, Dr. Kenney, and the NAACP representative, Mr. Harvey. However, that meeting was held in the principal's office, not at the PAC. The meeting went well and Mr. Harvey left the campus seemingly in agreement with how the School was handling interactions between racial groups.2 It was determined by the School administration that Respondent's apparent involvement in the effort to disrupt the NAACP meeting made his continued employment at the School impractical. However, rather than seeking to terminate Respondent, it was decided that he could be transferred to McIntosh to serve as a security monitor at that school.3 On the evening of December 5, 2008, after school hours, Respondent was called at home and told that he was being reassigned. On December 6, 2008, Respondent came to the School to empty out his employee locker and retrieve his personal items. He asked that this process be supervised and/or taped, so there were persons observing him as he did so. Respondent then reported to McIntosh for duty. Employees are not allowed to use school copying machines for personal use (without prior approval from administration). Each employee is assigned a code to use when making copies so that the School can monitor the use of copy machines. On the Monday following Respondent's reassignment to McIntosh, a media specialist printed out a "user chart" for one of the school copy machines located in the mailroom. The user chart showed that Respondent had made 465 copies on that machine since the beginning of the 2008-2009 school year. Principal Kenney could not think of any justification for Respondent making that many copies. Respondent does not remember what he copied, but notes that another security monitor made many more copies than Respondent did. Respondent did not deny making the copies, but was unaware of the requirement to get permission first. Just three weeks before the NAACP meeting incident, while Respondent was still working at the School, his supervisor was looking for him on campus. Respondent did not respond to calls over the walkie-talkie (radio) system used for communication purposes. Respondent had not signed out in accordance with the well-known policy to do so, but was observed off-campus at a gas station. The failure to sign out is an actionable violation of Respondent's employment. On December 18, 2008,4 Larry Leon (chief of school police and director of safety and security) and Sam Wilson went to McIntosh to provide Respondent a sealed envelope. The envelope contained a notice concerning an upcoming meeting. After Respondent failed to answer numerous radio calls from Wilson, Wilson asked McIntosh's assistant principal, Hazuda, to make an attempt to call Respondent. Hazuda called Respondent, who showed up at Hazuda's office in a matter of minutes. Upon seeing Wilson in the office, Respondent was visibly upset. He said something to Hazuda about being "set up" and that he was being harassed. Respondent refused to accept the envelope, said he was sick, and left Hazuda's office to go to the school clinic where he signed out for the day. When Wilson tried to talk to him, Respondent simply raised his hands above his head and walked away. Hazuda's efforts to make Respondent remain at the school and go back to work were not successful. Hazuda's testimony on this point is extremely credible. As Respondent was leaving the clinic, Leon called out to him. Respondent ignored Leon and continued to leave the building. Leon followed and called out loudly to Respondent, asking him to stop. Respondent swore at Leon, saying "F**k you" and continued to walk toward his car. At no time did Respondent turn around and engage in face-to-face conversation with Leon.5 On January 5, 2009, Police Chief Leon and Wilson returned to McIntosh with another written notice to be delivered to Respondent. Letters had been sent to Respondent about the upcoming meeting, but no response had been received. (Respondent had signed one copy of a notice, but left it on the counter in the administration offices rather than returning it as asked.) So, Wilson and Leon again tried to hand-deliver a copy of the notice to Respondent. Numerous attempts to contact Respondent via radio on January 5, 2009, were unsuccessful. Finally, someone who had heard the radio calls advised Respondent that he was being summoned to the front office. Respondent surmises that his radio might not have been functioning properly at that time, so he didn't hear the calls. When Respondent got to the office, he decided to check out for the day because he was feeling ill. He left without accepting delivery of the written notice. Subsequently, on January 15, 2009, a Weingarten hearing was conducted on the issues relating to the December 5, 2008, NAACP meeting at the School and the two incidents at McIntosh. Respondent attended the hearing and presented responses to the allegations of misbehavior. Based upon the information gathered at the Weingarten hearing, the District decided that termination of Respondent's employment was warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Sarasota County School Board terminating the employment of Respondent effective February 18, 2009. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 26th day of June, 2009.
The Issue The issues are whether Petitioner may terminate Respondent's employment as a school psychologist because he is willfully absent without leave from his job, pursuant to section 1012.67, Florida Statutes, or because he was grossly insubordinate in failing to self-report a criminal arrest, pursuant to section 1012.33(1)(a), Florida Statutes, and Florida Administrative Code Rules 6A-5.056(4) and 6A-10.081(5)(m).
Findings Of Fact Petitioner has employed Respondent as a school psychologist for at least ten years. Working under an 11-month contract for the 2014-15 school year, Respondent's first day of duty was in late July, about one month prior to the students' return to school. It appears that Respondent duly reported for work at the appointed time and assumed his assigned duties. However, on August 20, 2014, Respondent was arrested by a sheriff's deputy for the felonies of lewd and lascivious behavior and lewd and lascivious conduct with a minor. The arrest took place during the school day at North Port High School. To avoid disrupting the school's operation any more than was necessary, the principal, deputy, and school resource officer coordinated the arrest so that Respondent presented himself for arrest in the front of the school. Respondent did so, and the arrest took place without incident. After taking Respondent into custody, the deputy transported Respondent to the Sarasota County jail, where he has remained continuously since August 20 through the date of the hearing in this case. Respondent has not waived his right to a speedy trial, and his trial is presently set for early February 2015. The Sarasota Herald Tribune published a story of the arrest in its online edition by 2:00 p.m. on August 20. The story states that Respondent had been arrested for molesting a girl on multiple occasions in 2013 while the child, who was 14 and 15 years old at the time of the alleged incidents, lived in a therapeutic foster home that Respondent and his then-wife had operated. The story notes that Respondent was charged with lewd or lascivious molestation and lewd or lascivious conduct and was being held on $100,000 bond. Another story appeared in the Sarasota Herald Tribune newspaper on the following day and essentially repeated the facts reported in the online story. On the day of the arrest, the sheriff's office faxed to Petitioner a memorandum of an arrest of an employee of Petitioner. The memorandum identifies Respondent as the arrestee and the charges as violations of sections 800.04(5)(c)2., Florida Statutes, for a "sex offense against child fondling victim 12 YOA to 16 YOA offender 18 YOA or older" and 800.04(6)(a)1. for a "sex offense against child person over 18 yrs on child less than 16 yrs old." Respondent has never self-reported the arrest. However, within 48 hours of the arrest, the principal of North Port High School and Respondent's immediate supervisor in the District office knew all of the information concerning the arrest that would have been included in the self-reporting form that Petitioner has disseminated for self-reporting arrests. As indicated in the August 20 online newspaper article, bond was initially set at $100,000 for the two offenses, but was later doubled. The record permits no finding as to why Respondent has not posted bond himself or through the services of a limited surety; in particular, the record provides no basis for finding that Respondent has the financial capacity to pay the bond or, if using the services of a limited surety, pay the bond premium and post any security required by a surety. Based on the foregoing, the sole factual grounds supporting Petitioner's abandonment claim are his arrest and ensuing pretrial incarceration.
Recommendation It is RECOMMENDED that the Sarasota County School Board enter a final order dismissing the termination claims based on willful absence without leave and just cause in the form of gross insubordination for failure to self-report an arrest within 48 hours. DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 23rd day of December, 2014.
