The Issue The issue to be resolved in this proceeding concerns whether just cause exists within the meaning of Section 231.36(1), Florida Statutes (2000), to discipline the Respondent for alleged sexual harassment as a result of inappropriate touching.
Findings Of Fact The Nassau County School Board (Petitioner) employed the Respondent as a fifth-grade teacher. The Petitioner took the action giving rise to this dispute and formal proceeding, that is, it suspended and then terminated the Respondent from his teaching position. The Petitioner referred this matter to the Division of Administrative Hearings to conduct a formal proceeding and hearing. The Respondent Bernice Lamar Miles is an annual contract teacher, employed as such by the Petitioner at times pertinent hereto. He was employed at Emma Love Hardee Elementary School and had been employed there for approximately four years. A.P., C.B., J.P., and S.A., at all times pertinent hereto were students in the fifth grade, with Ms. Helen Edenfield as their primary teacher, at Emma Love Hardee Elementary School. During the fall semester of 2000 the Respondent taught approximately 540 students including those four, teaching them art and physical education. During the fall semester of 2000 the Respondent was scheduled to be the cafeteria monitor between 11:50 a.m., to 12:20 p.m. His duties, as cafeteria monitor, were to ensure the smooth transition of classes of students to and from the cafeteria. In doing so he attempted to maintain order, but typically permitted a more relaxed atmosphere than was the case in the typical classroom situation. There were at least ten other teachers and/or teacher's aides in the cafeteria eating with their classes or picking up or leaving their classes at the cafeteria on that date, between the times of 12:15 p.m. and 12:30 p.m. Between the times of 12:20 p.m. and 12:25 p.m., there were at least six teachers and/or teacher's aides in the cafeteria. There would also typically be some parents, food servers and/or custodians present during these time periods in the cafeteria. Also, on November 20, 2000, between the times of 12:20 p.m. and 12:25 p.m., there were approximately 200 students present in the cafeteria with classes entering or leaving the cafeteria about every five minutes. On November 20, 2000, there were no physical obstructions in the cafeteria that would interfere with any person's direct line of sight towards the stage where A.P., C.B., and the Respondent were standing at the relevant time. The Respondent's Exhibit A accurately depicts a general diagram of the cafeteria and was used for that demonstrative purpose at hearing. Ms. Edenfield's class was in the cafeteria on November 20, 2000, and she was scheduled to pick them up to return to the classroom at 12:25 p.m. The Respondent, therefore, called Ms. Edenfield's class to stand by the stage after they had finished eating lunch to await Ms. Edenfield coming to pick them up. While standing in front of the stage A.P., a fifth- grade student, called the Respondent over to ask him a question. On that date the Respondent did not know the first or last names of either A.P. or C.B. The Respondent, standing near both near A.P. and C.B., spoke to them about the cold weather that day and their decision to eat lunch outside without wearing warmer clothing. He typically speaks to students in the lunchroom and jokes with them, as it is a more relaxed atmosphere than in the classrooms. The Respondent typically is animated when he converses with people. It is quite common for him to touch an individual, either male or female while conversing with them. He speaks in this manner with both male and female and adults and children alike. This manner in which the Respondent makes physical contact with teachers or students while conversing with them is innocuous and has no inappropriate intent. The Respondent does not remember coming into physical contact with either A.P. or C.B. in the cafeteria on November 20, 2000. He did not touch either of them in an inappropriate manner on that date. He merely touched the students, if at all, in an effort to determine if they were cold from being outside without a jacket or sweater or possibly touched A.P. in an effort to fix her collar or neckline, which was askew. Although A.P. and C.B. were standing beside each other within arms length of each other on this occasion when they described the Respondent touching them, neither of these students witnessed the Respondent's alleged touching of the other. S.A. was also a student of the Respondent's in his art and physical education classes in the Fall semester of 2000. She was in the same class as A.P., C.B. and J.P. S.A. has never been touched inappropriately by the Respondent and has never witnessed the Respondent touch anyone in an inappropriate manner. S.A. was present in the cafeteria on November 20, 2000. At the time of the alleged inappropriate touching of A.P. and C.B., S.A. was standing in line next to A.P. and C.B. S.A. observed the Respondent come into physical contact with A.P. in the vicinity of her neckline and witnessed the Respondent fix A.P.'s collar which was askew. S.A. did not observe the Respondent touch C.B. at all. When Ms. Edenfield arrived to retrieve her class from the cafeteria at approximately 12:25 p.m., that day, the Respondent was standing at the microphone. The cafeteria, with approximately 200 students present, including Ms. Edenfield's class, appeared to her as it typically does. Just as the school day ended on November 20, 2000, A.P. reported to Ms. Edenfield that the Respondent had grasped the front of her shirt. A.P. demonstrated the touching with both hands to Ms. Edenfield, grasping the front neckline of her shirt and pulling outward. C.B. did not report any touching by the Respondent to Ms. Edenfield that day. Ms. Edenfield had A.P. go to the principal's office and report the alleged incident to Ms. Grondin, the principal. Ms. Edenfield later learned that C.B. must have accompanied A.P. to see Ms. Grondin. In any event, at least, she observed A.P. and C.B. later, back in the room, working together on a draft of a statement of what allegedly occurred between the Respondent and A.P. in the cafeteria. C.B., at some point later, apparently reported an alleged touching by the Respondent involving his putting his hand approximately half its length into the front of her shirt and purportedly incidentally touching the strap of her bra. S.A. who was standing at arm's length distance and who saw the Respondent straighten the collar of A.P., saw no touching at all of C.B. on the occasion in question in the cafeteria. J.P. was also a student in Ms. Edenfield's class, and in the Respondent's class, during the Fall semester of 2000. During that time prior to Thanksgiving, or prior to the November 20, 2000, alleged incident, J.P. contends that the Respondent touched her from four to six times on her back with his hand going inside her shirt. J.P. stated that when the Respondent patted her on the back he would occasionally remark that her art work was good and make other comments of that nature. J.P. testified, on cross-examination, that the alleged placing of the Respondent's hand inside her shirt did not occur on each of those occasions and then abruptly changed her testimony, upon re-direct, to state that the Respondent put his hand inside her shirt on every occasion. J.P. did not report the alleged inappropriate touching incidents immediately after they occurred. J.P. talked with A.P. on November 20, 2000, when A.P. contended that the Respondent had touched her. On the evening of November 20, 2000, A.P.'s mother called J.P.'s mother regarding A.P.'s allegations. Following that conversation, J.P.'s mother woke J.P. up to speak with her about the Respondent. The next morning, prompted by and accompanied by her parents, J.P. complained to Ms. Grondin, the school principal, about the Respondent's alleged inappropriate touching of her. The Respondent frequently patted students on the back for the purpose of consolation, encouragement or in a congratulatory manner. The Respondent pats the back of both male and female students many times a day. When the Respondent patted J.P. on the back, he would praise her regarding the quality of her art work and make other congratulatory comments to her. The Respondent has no memory of ever placing his hand on J.P.'s front or back in which any part of his hand protruded beneath her clothing. He never intentionally came into contact with the bare skin on J.P.'s back. It is determined that the Respondent did not touch J.P. in an inappropriate manner during the fall semester of 2000. If he did touch J.P. it was in an innocuous manner in which he touches all his students male and female. The testimony by J.P. that the Respondent put his hand beneath her cloths or inside her shirt is not persuasive and is not credible. None of the three complainants' academic performance appeared to have suffered during the time of and as a result of the alleged conduct of the Respondent. In fact, J.P. was a straight "A" student, while A.P. and C.B. were straight "A" students or "A/B" honor roll students. There is no evidence of any conduct or attitude on the part of the three complainants, before the proceeding, which would indicate that they were upset or nervous concerning any attitude or conduct on the part of the Respondent. The School Board maintains a policy prohibiting sexual harassment. Section 3.54 of the Nassau County School Board Rules contains that policy. The policy defines "Sexual Harassment" as: Consisting of unwelcome sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when . . . such conduct substantially interferes with . . . a student's work performance or creates an intimidating hostile or offensive . . . school environment. The Respondent was disciplined by the Board for violating its sexual harassment policy, Section 3.54. Specifically, the "inappropriate touching" alleged in the letter of suspension of November 22, 2000, referred to the prohibited "inappropriate touching" in the Board policy which is designated the prohibition of sexual harassment. Dr. Ruis, the superintendent, opined that the alleged touching by the Respondent was inappropriate based upon his interpretation of the sexual harassment policy of the School Board. His interpretation did not take into account any intent requirement which the Board policy itself does require. His opinion that the touching, if it occurred, was inappropriate and that the Respondent had lost effectiveness based upon the incident becoming public knowledge is wholly dependent upon the complete accuracy of the students' allegations and his interpretation of the School Board policy which will be treated in the Conclusions of Law below. It is determined that the testimony offered by J.P., A.P. and C.B., is not persuasive. It was not preponderantly demonstrated by their testimony that the touchings or all of them even occurred at all, aside from the one occasion when the Respondent straightened A.P.'s collar, which testimony was corroborated by the testimony of J.A. Moreover, even if some of the touchings occurred, it was not shown that they were inappropriate or had any sexual intent or motive because, for one thing, testimony concerning whether the Respondent's hand was beneath any of the complaining witnesses' clothing or not or the degree to which it purportedly was, was contradictory and, under the totality of the circumstances found above is simply not credible and persuasive. Consequently, to the extent that any touching occurred at all, it was not shown to be other than a mere innocent, innocuous pat on the back, or similar touching, with no sexual intent, motive or overtones associated with it. Given the totality of the circumstances established by the above Findings of Fact, as to where and under what conditions all of the touchings occurred, if at all, and particularly those described by J.P. and C.B. as purportedly having occurred on their persons at the dates, times and places described in their testimony, it is determined that, if any touching occurred at all, it was innocuous, innocent and of a non-sexual intent, and nature. Therefore, it was not inappropriate.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the School Board of Nassau County dismissing the complaint against the Respondent and reinstating the Respondent to his former position without diminution or loss in pay, benefits or other emoluments of his former position. DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida. P. Michael Ruff 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 4th day of October, 2001. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301 Brian T. Hayes, Esquire Brian T. Hayes, P.A. 245 East Washington Street Monticello, Florida 32344 John L. Ruis, Ed.D Superintendent of Schools Nassau County School District 1201 Atlantic Avenue Fernandina Beach, Florida 32034 Honorable Charlie Crist Commission of Education The Capitol, Level 08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent engaged in sexual misconduct with and S.L. when they were students at a district high school, and should be terminated for violation of Volusia County School Board Policies.
Findings Of Fact The Petitioner is the School Board of Volusia County. The Petitioner is charged with the operation of the public schools in Volusia County to including directing, controlling, and disciplining teachers employed to teach in those schools. The Petitioner has entered into contractual agreements concerning the discipline of its teachers. The instant case arises from Petitioner's execution of its duties to direct, control and discipline a teacher whom it had employed. The Respondent is Reuben Mordecai, Jr., who was employed as a classroom teacher and athletic coach at Mainland High School by the School Board of Volusia County. The Respondent had been employed as a classroom teacher and athletic coach for girls' basketball and track teams since 1989. On or about September 6, 2000, L.G., a female student at Mainland High School, alleged that the Respondent spoke to her in a sexually explicit and improper manner. On or about September 7, 2000, L.G. further alleged that the Respondent had touched her in a sexually inappropriate manner. These allegations were reported to the Board's Department of Professional Standards and to the Daytona Beach Police Department. Pursuant to policy, the Board limited its interviews of the alleged victim and delayed its investigation of the incident pending resolution of any potential criminal charges. While awaiting further investigation, the Board initially reassigned the Respondent to a non-instructional position in Facilities Maintenance Department. He was in this position from September 11, 2000, until the Board transferred him to the Educational Development Center in August 2001. After the police had finished their investigation, the Board conducted an investigation into the allegations. Based upon its investigation, the Board suspended the Respondent without pay and initiated termination proceedings against him. While the case was pending, the Board became aware of allegations made by S.L., a former student of the Respondent, who also alleged that he had made improper sexual comments to her and had improperly touched her. The charges against the Respondent were amended to include these allegations. S.L. and L.G. knew one another and had a friendly relationship with one another both in and out of school. The essence of S.L.'s allegation was that, while she was a student at Mainland in 1998, the Respondent let her use his coaching office in the morning to make telephone calls to her boy friend who was not in school; that during these calls, the Respondent was present on more than one occasion. The Respondent talked to her about having sex with his wife, talked about sexual matters with her, and on one occasion kissed her neck and fondled her buttocks and thighs. S.L. testified that she said nothing to the Respondent about his conduct and left for first period class. Thereafter, she stopped going to his office. S.L. testified that she reported this to Susan Lewis, a teacher at Mainland, but did not identify herself as the victim. She also testified that she reported the Respondent's actions to Walter Brunson and Rose Rowland, the assistant principal. Mr. Brunson was called to testify, but not asked if he recalled S.L.'s mentioning this to him. Ms. Rowland was asked if she recalled S.L. having reported this incident to her. She did not remember S.L. telling her about an incident involving inappropriate touching or speech by the Respondent. The Respondent denies having touched, kissed, or spoken to S.L. in an inappropriate fashion. He did not remember her being in his class, although he accepted that school records reflected that she was enrolled in one of his classes. I do not find the testimony of S.L. credible. L.G. testified that she had been a member of the girls' track team and the following year had been an assistant manager for the football program. She stated that she and the Respondent had made bets about various things, the outcomes of meets, individual performances, etc. The loser had to buy the other a soda or snack. They also discussed various matters, including her relationships and school. She stated that at some point, their discussions included sexual content. She stated that he had observed her in track shorts and commented on the imprint of her vagina. With regard to the allegations of improper touching, she stated that they had commenced a discussion about her boy friend who was bothering her. During this discussion, he discussed having had sex with his ex-wife. This alleged encounter between L.G. and the Respondent moved from the bench outside the gym, to the Respondent's classroom, where L.G. was going to wait for her ride to pick her up and the Respondent was going to grade papers. While in the classroom, L.G. testified that she was playing with the computer and a discussion occurred which led to a bet about the definition of oral sex. She stated that she wrote her answer on a piece of paper and gave it to the Respondent, who said it was wrong. Because she lost the bet, he wanted her to pull her pants down and show him her vagina. She testified that she said okay, and pulled down her shorts. L.G. testified that he asked her to sit on the front of his desk and spread her legs, which she did. When he touched her vagina, she jumped down, pulled up her shorts and left. L.G. did not explain why she abruptly ended the encounter when she had freely engaged in all of the previous conduct when refusing earlier would have been much easier both physically and emotionally. She testified that she did not initially report the incident because she was scared; however, her fear did not keep her from participating in the acts leading up to the touching. L.G. testified that she continued to go to school, but people asked her if she was okay. She assumed something about her manner was different. The Respondent asked her in the auditorium if she was okay, and she said she was. She stated she went and sat by herself, and Mr. Brunson came and asked her if she was okay. He asked her about rumors that were circulating in the school that the Respondent had said inappropriate things to her. L.G. denied having spoken to anyone about the alleged events prior to Mr. Brunson's speaking to her. See Page 82 of the Transcript. No one could have overheard L.G. and the Respondent. It is highly doubtful that the Respondent told anyone about the alleged events. L.G. says that she did not talk to anyone about the incident until several weeks after it occurred when she told her boy friend, R.M., about it. See page 94 of the Transcript. This contradicts her testimony on Page 82. The Respondent denies having made the statements attributed to him or touching L.G. I do not find the testimony of L.G. credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That no action be taken against the Respondent. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of July, 2002. COPIES FURNISHED: Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Thomas Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 William E. Hall, Superintendent Volusia County Schools Post Office Box 2118 Deland, Florida 32721-2118 Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, and gross insubordination.
Findings Of Fact At all times material to this proceeding, the Respondent, Chico J. Arenas, was employed as a teacher by the Dade County Public Schools pursuant to a professional services contract. At the time of the hearing in this case, K. F. was a fifteen-year-old student in the 10th grade. She is a former student of the Respondent. At the time of the hearing, E. W. was a fifteen-year-old student in the 10th grade. She is also a former student of the Respondent. Both K. F. and E. W. are females. Shortly after Halloween in 1990, one day when the Respondent and K. F. were alone in a classroom, the Respondent asked K. F. whether a male student named M. was "getting action." At that time M. was a close friend of K. F. The term "getting action" was a reference to sexual intercourse. When K. F. answered the question in the negative, the Respondent repeated the question and also made statements to the effect of, "M. is lucky," that he had "heard Jamaicans are wicked in bed," and that "older guys will show you more." The Respondent also told K. F. that she made him "excited." K. F. construed these statements as being sexual in nature. As a result of these statements by the Respondent, K. F. lost the trust she had in her teacher and never went back to his class. The incident involving K. F. resulted in the Respondent being made formally aware of the School Board's policies with regard to inappropriate statements to female students containing expressed or implied sexual references and the Respondent was specifically directed to avoid sexual harassment of female students. Beginning in February of 1992, on three separate Saturdays, at approximately 11:00 a.m. on each of those days, the Respondent telephoned E. W. at her home. At that time E. W. was one of the Respondent's students. On each of those occasions the Respondent's statements to E. W. were of a personal nature and had nothing to do with the fulfillment of Respondent's duties as a teacher. On the first of the three telephone calls to E. W., the Respondent identified himself, but there was very little other conversation. Shortly after the Respondent identified himself to her, E. W. told him that she was doing something and asked if he could call back later. During the course of the second telephone call, the Respondent made statements to E. W. to the effect that he "liked" her and that he had "feelings" for her. The Respondent also told E. W. that she was "a beautiful young lady" and that she "had a nice shape." After just a few such statements, E. W. told the Respondent to call back later and she hung up. The Respondent's statements during the second telephone conversation led E. W. to believe that the Respondent had a romantic or sexual interest in her. During the course of his third Saturday telephone call to E. W., the Respondent repeated statements to the effect that he liked her, that she had a beautiful shape, and that she was a beautiful young lady. He went on to also tell her such things as that "he wanted to wrap his hands around [her] and hold [her] tight," that "he wanted to give [her] things," that her boyfriend "didn't have to know what was going on," and he also told her "not to tell her mamma [she] was talking to him on the phone." The Respondent also asked E. W. to meet him in the library near her home and to otherwise skip school so that she could be with him. The Respondent also made comments to the effect that he could do more for E. W. than her boyfriend could and that she was "a beautiful young lady, and [she] deserved beautiful things." As a result of the statements during the third Saturday telephone call, E. W. became convinced that the Respondent wanted to have a sexual relationship with her and she began taking steps to avoid the Respondent. As a student, E. W. was doing well in the Respondent's class. If she had had any personal problems that came to the attention of the Respondent, it would have been his responsibility to have referred her to one of the school counsellors. The Respondent is not certified as a counselor or as a psychologist. At the time of the telephone calls to E. W. described above, the Respondent did not have any school related business which required him to call E. W. at home, nor was he trying to reach E. W.'s mother. When the events described above were reported to school officials, the Respondent was removed from a school based employment site and reassigned to work elsewhere. The reassignment and the reasons for it became known to a number of administrators, teachers, parents, and students. The disclosure of information about the matter resulted in part from statements the Respondent made to others. The Respondent's effectiveness as a teacher has been impaired as a result of his conduct with E. W. and his prior principal would be reluctant to rehire him as a teacher. The Respondent's conduct with E. W. also constitutes misconduct in office and is a breach of his professional relationship of trust with students because it exposed a student to embarrassment and disparagement. The Respondent's conduct with E. W. also constitutes immorality.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Respondent is guilty of immorality, misconduct in office, and gross insubordination as charged in the Notice of Specific Charges and, on the basis of those conclusions, terminating the Respondent's employment. DONE AND ENTERED this 10th day of January 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January 1994. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties: Findings of Fact submitted by Petitioner: Paragraphs 1, 2, and 3: Accepted in substance with some details modified in the interest of clarity. Paragraph 4: Rejected as irrelevant because the conduct described here was not charged in the Notice of Specific Charges. Paragraphs 5, 6, 7, the unnumbered paragraphs following 7, 8, and 9: Accepted in substance with some details modified in he interest of clarity and accuracy. Paragraphs 10 and 11: The essence of these paragraphs has been accepted, but most details have been omitted as unnecessary. Findings of Fact submitted by Respondent: By way of clarification, it is noted that the Respondent submitted two post-hearing documents in support of his positions on the issues: one titled RESPONDENT'S MEMORANDUM IN SUPPORT OF HIS PROPOSED ORDER RECOMMENDING REINSTATEMENT, and the other titled RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. The first of these two documents includes an extensive summary of the testimony, which summary has been carefully reviewed by the Hearing Officer. However, because those summaries do not constitute proposed findings of fact, they are not specifically addressed below. Here, as in the usual course of events, it would serve no useful purpose to recite at length the extent to which the summaries are or are not accurate and to do so would add to this Recommended Order voluminous subordinate and unnecessary details; details which have been carefully considered during the fact-finding in this case. Specifically addressed below are the paragraphs contained in the "Findings of Fact" portion of the RESPONDENT'S PROPOSED FINDINGS OF FACT AND ORDER. Paragraphs 1, 2 and 3: Rejected as contrary to the greater weight of the evidence. (This disposition of the proposed findings is, in any event, irrelevant in view of the Hearing Officer's disposition of the immorality charge). Paragraph 4: Rejected as contrary to the greater weight of the evidence. The evidence is sufficient to prove the acts alleged by a preponderance of the evidence. Paragraph 5: Rejected as contrary to the greater weight of the evidence and as constituting a proposed conclusion of law, rather than proposed findings of fact. (On the basis of Johnson v. School Board of Dade County, 578 So.2d 387 (Fla. 3d DCA 1991), the Hearing Officer has reached a conclusion different from the one proposed here.) COPIES FURNISHED: David Rothman, Esquire Thornton, Rothman and Emas, P.A. 200 South Biscayne Boulevard Miami, Florida 33131 James C. Bovell, Esquire 75 Valencia Avenue Coral Gables, Florida 33134 Dr. Joyce Annunziata, Director Office of Professional Standards Dade County Public Schools 1444 Biscayne Boulevard Miami, Florida 33132 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue #403 Miami, Florida 33132-1308 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33122 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent should be dismissed from his employment with Florida A & M University, as proposed in a termination letter dated August 19, 1999.
Findings Of Fact Based upon all of the evidence, including the stipulation of the parties, the following findings of fact are determined: In this employee termination case, Petitioner, Florida A & M University (FAMU), seeks to terminate the employment of Respondent, Calvin C. Miles, Jr., on the ground that he sexually harassed three female students and retaliated against two students in violation of Rule 6C3-10.103, Florida Administrative Code. Because FAMU is a part of the State University System, the Board of Regents was also identified as a Petitioner. Respondent has denied all allegations. FAMU has a non-discrimination policy and harassment complaint procedure codified in Rule 6C3-10.103, Florida Administrative Code. Paragraph (6)(b) of the rule prohibits sexual harassment while paragraph (11)(a) prohibits retaliation. Respondent was subject to this policy and procedure, and on August 26, 1998, he signed a paper indicating that he had read and understood the same. On August 22, 1997, Respondent was hired as General Manager of WAMF, a radio station owned and operated by FAMU and which employed a number of FAMU students. Whether he was considered a non-instructional or instructional employee is not clear. In any event, the station had been without a full-time manager "for a while," and Respondent was told to come in and "put in place some policies and format . . . and move the station in the direction that [FAMU] thought it should go." He was also told that the station should be operated as a teaching facility. FAMU agrees that some of Respondent's decisions in implementing these directives "caused some people to bristle." Respondent's immediate supervisor was Dr. Hawkins, Director of FAMU's Division of Journalism. As such, Dr. Hawkins was required to prepare Respondent's annual evaluations. The first evaluation was prepared on September 29, 1998, and was transmitted to Respondent with a letter of the same date. In his letter, Dr. Hawkins concluded that Respondent's "first year here has been a mixed bag." While he acknowledged that Respondent had "turned up the level of professionalism at the station substantially and in rather quick fashion," he noted other matters of concern. Among these was a concern that at least three female students said that you had made inappropriate remarks to them. While none of these students have filed a complaint, I believe I have a responsibility to mention them now. In addition to the comments of these students, other female students have said that they just plan to stay away from the station so they do not have to be bothered. This is not the climate we want. This letter placed him on official notice that some female students perceived his conduct towards them as offensive and having an improper sexual connotation. In response to his evaluation, Respondent wrote Dr. Bryant a lengthy letter dated October 22, 1998. As to the allegations of sexual misconduct, Respondent "strongly suggest[ed] that the University conduct a thorough investigation of all complaints of this nature." During his tenure with FAMU, Respondent had two or three meetings with the Dean of the School of Journalism, Media, and Graphic Arts, Dean Ruggles, and his immediate supervisor, Dr. Bryant, regarding the foregoing complaints of sexual misconduct. Respondent was urged to use "extreme caution," to reassess his behavior with female students, and warned that "if these allegations were taken to the complaint stage" by a student and found to be substantiated, there would be severe consequences. In addition, on at least one occasion, Respondent met with the Director of FAMU's Office of Equal Opportunity Programs regarding a complaint by another student. Therefore, it is fair to infer that Respondent was well aware of on-going accusations being made against him, and that he should be extremely cautious in his behavior around female students. After formal complaints of sexual harassment were filed by three female students in February 1999, FAMU's Office of Equal Opportunity Programs conducted an investigation. On May 11, 1999, the President of FAMU notified Respondent that the findings of the investigation revealed that Respondent had violated Rule 6C3-10.103, Florida Administrative Code, and that FAMU intended to terminate his employment. Respondent then availed himself of the right to have an "investigatory interview" by a University Personnel Committee on July 13, 1999. When the committee determined that no new facts had been presented, Respondent was dismissed from employment effective August 26, 1999. This appeal ensued. Although the termination letter does not identify the specific allegations which form the basis for the termination, in a Joint Prehearing Stipulation filed by the parties, FAMU has alleged that Respondent "engaged in conduct and actions toward[s] [Symphony] Parson, [Deanna] McKinley[,] and [Jackeline] Pou that rose to the level of sexual harassment in violation of Rule 6C3- 10.103(6)(b), Florida Administrative Code." FAMU further alleged that Respondent "exhibited behavior towards Ms. Parson and Ms. Maria Williams, a witness in this matter, that rose to the level of retaliation as set forth in [Rule] 6C3-10.103(11)(a), F.A.C." However, there was no evidence regarding retaliation against Maria Williams, who was not a witness in this case, and that portion of the charges has been disregarded. Parson, McKinley, and Pou testified at the final hearing, and although Respondent disputed the accuracy of their allegations, their testimony has been accepted as being the most persuasive on these issues. Findings with respect to those allegations are set forth below. Deanna McKinley Deanna McKinley (McKinley) enrolled at FAMU in the fall of 1996 and was a senior at the time of hearing. On September 1, 1998, McKinley began working at WAMF and hosted an Inspirational Gospel Morning Show using the on-air name of "Deanna Devine." Respondent was her supervisor. Throughout her employment at the radio station, McKinley felt "uncomfortable" around Respondent. This was because he would stare at her breasts, always place his hands on her shoulders when speaking to her, squeeze her shoulders, touch her hand in the Disc Jockey (DJ) booth, and stand extremely close to her while the two spoke. She was especially uncomfortable "being in the same studio with him, because the studio was in a different part of the building, it was locked, it was dark, [and] usually [she] was the only one there." Although she disliked Respondent's conduct and on occasion had told him that she disapproved of it, McKinley was under the impression that unless she tolerated Respondent's actions, she would not be allowed to continue as a DJ or "make progress" at the station. Besides the foregoing conduct, Respondent made personal remarks of a sexual nature to McKinley. For example, when she would bend over, he would say something like "Don't bend over like that, you will get someone excited." He also made a comment about how "adorable" and "kissable" she was, and that if he were her man, he "would just kiss [her] all the time." Once, when McKinley remarked ". . . little old me?", Respondent stared at her breasts and replied "Nothing on you is little, Deanna. But that's all right. It's all good." In January 1999, McKinley accidentally dropped something on the floor in the studio and bent over to pick it up. Respondent again stated "You should not bend over like that, Deanna, you may get someone excited." This latest incident triggered a decision by McKinley to leave the radio station. It is fair to infer from the evidence that McKinley perceived the radio station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 1, 1999, McKinley submitted her letter of resignation to the radio station. On February 11, 1999, she filed a complaint with FAMU's Office of Equal Opportunity Programs. Symphony Parson Symphony Parson enrolled at FAMU in the fall of 1997 with a major in broadcast journalism. She began working at WAMF that same year as a music director and on-air personality. Respondent was her supervisor. In April 1998, and while on duty at the station, Parson was taking a telephone message for the station secretary late one afternoon when Respondent came up behind her and began rubbing her shoulders and then moved his hand onto her breast. She told him to stop, "cursed him," and then left the station. In November 1998, Parson was in the station "writing on the file cabinet" when Respondent came up behind her and "brushed up against her" rubbing his shoulders against her. She again "cursed him out." A month later, he repeated the same conduct. According to Parson, she felt "violated" and "horrible" whenever this conduct occurred. Respondent also engaged in inappropriate conversations with Parson when she was on duty at the station. For example, he asked her if she was having sex with her boyfriend, and he told her how "cute" and "sexy" she was. These conversations made her feel extremely uncomfortable and led Parson to try to avoid Respondent whenever possible. At the same time, however, Parson felt that she had to tolerate this conduct to keep her position at the station. It is fair to infer from the evidence that Parson found the station to have a hostile working environment, and that Respondent's conduct unreasonably interfered with her educational performance and ability to work at the station. On February 8, 1999, Parson filed a charge of sexual harassment against Respondent with the Equal Opportunity Office. A few days later, Respondent was placed on administrative leave. When he returned to his office to clean out his personal items, he passed by Parson and said "You're dead." Parson reported this to the police, was forced to get a cell phone out of fear for her personal being, and asked her parents to temporarily move into her apartment. Jackeline Pou Jackeline Pou (Pou) enrolled in FAMU's journalism program in August 1996. She began working at WANF in September 1997. Respondent was her supervisor. While working at the station, Respondent would sometimes brush his body against Pou or touch her shoulders, which made her feel uncomfortable. Almost on a daily basis, he would make comments about how pretty she was or make comments about her "eyes". When he spoke to her, he would stare at her breasts. Once, she observed him staring at her "behind when [she] was walking away." In the summer of 1998, and just after Pou finished speaking on the telephone with a friend, Respondent asked who she was speaking with. When Pou responded "It's none of your business," Respondent said, "It couldn't have been a guy or the seat would have been wet." Respondent's conduct made Pou feel intimidated and uncomfortable, and she disliked being alone in the radio station with Respondent during the evening hours. Besides creating a hostile work environment, such conduct also unreasonably interfered with Pou's educational performance and ability to work at the station. On February 11, 1999, Pou filed a complaint of sexual harassment against Respondent with FAMU's Office of Equal Opportunity Programs. Respondent's contentions Respondent has steadfastly denied all allegations of sexual misconduct since they first surfaced in 1997 or 1998. At hearing, Respondent contended that he was an unpopular figure among the students due to his strong disciplinary measures. While this may be true, it does not justify his actions towards McKinley, Parson, and Pou. He suggested that McKinley's complaint was motivated by her displeasure with his disciplinary measures and failure to obtain her a parking pass. Respondent further suggested that Parson bore him ill-will after he demoted her to a different position at the station. He also contended that out of revenge, the three women met and conspired to file false complaints in an effort to have him removed from the station. Finally, Respondent suggested that each of the complainant's testimony was full of inconsistencies and lacked specificity as to certain dates and times. These contentions have been considered by the undersigned and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida A & M University enter a final order confirming the dismissal of Respondent as an employee. DONE AND ENTERED this 29th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2000. COPIES FURNISHED: Bishop C. Holifield, General Counsel Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Avery D. McKnight, Jr., Esquire Ruth N. Selfridge, Esquire Florida A & M University Suite 300, Lee Hall Tallahassee, Florida 32307-3100 Calvin C. Miles, Jr. 501 Blairstone Road, Apartment 123 Tallahassee, Florida 32301
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Mary Benekin holds teaching certificate No. 478252 and is certified to teach at the elementary and secondary levels in the areas of mental retardation and specific learning disabilities. Benekin was employed on annual contract as an exceptional education teacher in the Duval County School District at the Matthew W. Gilbert Seventh Grade Center. She began employment there in 1984 and continued to teach in that position until approximately February 20, 1987, when she left her position and did not return. The Petitioner seeks to revoke or otherwise penalize Benekin's teaching certificate for misconduct involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; for misconduct which seriously reduces her effectiveness as an employee of the school board in violation of Section 231.28(1)(f); for misconduct which violated the provisions of law or rules of the State Board of Education in violation of Section 231.28(1)(h); and for misconduct which intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. These charges were based on 6 specific factual allegations against Benekin: use of sexually explicit language and terms in the classroom; recounting to students various sex acts she and her boyfriends performed and discussing other sex- related matters; sitting in front of students with her feet on her desk and her legs spread apart, sometimes scratching her vaginal area; making reference on numerous occasions to drugs and asking students if they knew where to buy drugs; repeatedly borrowing money from students, having students buy food for her, and asking students for some of their food; and making derogatory statements about students in the presence of other students, including statements that they smelled bad. Sexual Language and Discussions On direct examination, Ray Cummings, a student in Benekin's 4th period science class, stated that Benekin talked about sex to Tom Tom (Thomas Jones) on one occasion and that she said she "sucked men's dicks." On cross examination, Ray said that either Benekin or Racheal Ashley made the statements. Then on redirect examination, Ray said that Benekin talked "nasty," but did not say "suck men's dicks." Instead, she said something else regarding sex acts, about not allowing a man to "put his thing in her, that she would let him feel all over her." Ray then testified that he heard Benekin make these statements to Thomas. Finally, on recross examination, Ray said Benekin made these statements to "Racheal and them." By contrast, the report of the principal, Curtis Randolph, shows that Ray told the investigator there that he did not know of anything going on in Benekin's class. Also, Ray's testimony is contradicted by Thomas' statement. (See Findings of Fact 11 and 12). Kathy Jessup testified on direct that she overheard Benekin say, in a conversation with someone who Kathy cannot identify, that she would "suck men's dicks." Kathy testified that her friends told her Benekin said this in other classes, too. Kathy also said that she heard Benekin talk about sex, but she can't remember what was said or to whom. On cross examination, Kathy testified that Benekin told the whole class that she "sucked men's dicks." By contrast, the principal's report again shows that Kathy made no mention in that investigation of the alleged sexual discussions or the specific statement regarding "sucking men's dicks." Several sworn statements from students who were not present to testify were submitted "only for the purpose of corroboration." Regrettably, these statements do not corroborate much of the direct evidence. The statement of Kenyatta Brown says essentially that Benekin talked about sex to Tom Tom and Ray everyday and that Racheal told her that Benekin said she "sucked men's dicks." This is contrary to Ray's testimony and Thomas' statement and to the story she told to the principal's investigator. (See Finding of Fact 14). Racheal Ashley's statement says Benekin told "us" about specific sex acts and that she "suck's men's things." However when this is compared to other students' testimony and statements, it begins to become apparent that Racheal is probably the source of these alleged statements. Racheal's statement is directly contrary to the story she told the principal's investigator. (See Finding of Fact 13). Antinette Phillips' statement states that Benekin told the class all about her sex life and goes into great detail. No other students' recall of the events agree with Antinette's and no other student related the details stated by Antinette. Antinette's statement also differs from what she told the principal's investigator. (See Finding of Fact 15) Thomas Jones' statement indicates that Ray and Racheal told him that Benekin said she sucked her boyfriend's dick and that she let him fondle her. Thomas specifically stated that other students told him about Benekin's alleged discussions about sexual acts between her and her boyfriend. Finally Thomas stated that Benekin said what she does at home, she leaves at home. Thomas never heard any sex talk from Benekin. Clearly Thomas' statement is directly contrary to Ray's testimony and Racheal's statement and the report of the principal's investigator. The principal made a report of the information related by students in the course of his investigation. This information is contrary to the later statements of most of these students. For example, Racheal attributed the descriptions of sexual acts and the statement about sucking men's dicks to a Mrs. Sowell, another teacher. Racheal never said anything about Benekin in relation to these sexual discussions. Kenyatta Brown told the investigator that Benekin said in class that she and her boyfriend sucked each others privates and that Benekin asked Thomas and Antinette about their sex lives. This is directly contrary to her written statement. (See Finding of Fact 8) Antinette Phillips told the principal's investigator that Benekin told her, Thomas, Ray and Antinette about various details of her sex acts with her boyfriend. Again, these details are not consistent with the details given in her statement. It appears from all of these conflicting statements that a rumor circulated that Benekin made these statements; however, the testimony of Ray and of Kathy is specifically found to lack credibility and no weight is given to the student's statements because they contradict, not corroborate, the allegations. Accordingly, insufficient evidence exists to support a finding that these sexual discussions and use of sexual terms occurred. Inappropriate Sitting and Scratching The direct testimony of Ray Cummings again is that Benekin sat with her feet on her desk and that on one occasion she scratched her fresh appendectomy scar. The direct testimony of Kathy Jessup was that Benekin put her feet up on her desk while wearing pants. Kathy never saw Benekin scratch herself. Various of the sworn statements alleged that Benekin put her feet on her desk with her legs open and her underwear showing and scratched her vaginal area. These statements were admitted only to corroborate other admissible evidence. Here, there was no direct evidence to be corroborated by these statements. The only evidence entitled to any weight or consideration is that Benekin put her feet on her desk and on another occasion, while standing, scratched in the area of her fresh appendectomy scar. Neither of these acts can be construed to be misconduct as alleged in the Administrative Complaint. Reference to Drugs The only direct testimony was that of Ray and Kathy. Ray never mentioned drugs in relationship to Benekin and Kathy specifically testified that she never heard of or saw Benekin discuss, mention or use drugs. Kathy did testify that other of her "friends" told her that Benekin told them that she used drugs. The only mention of drugs and drug use by Benekin came from the sworn statements which were admissible only to corroborate direct evidence. There being no direct evidence regarding any statements Benekin made to students regarding drugs, no finding can be made in regard to this alleged misconduct. Borrowing Money and Taking Food Ray Cummings testified that when students brought candy or food to class, they had to share it with everyone, including Benekin. He gave candy to her. Benekin would collect money from students to get snacks from the food machine in the teachers' lounge. When a student did not have money, the others would chip in. On one occasion, Benekin gave 15 pennies to Kathy for 3 nickels to be used in the food machine. Kathy testified that Benekin borrowed 15 cents from her and did not pay it back. Benekin also borrowed from other students. Kathy did not recall Benekin using the borrowed money for snacks for the whole class. On cross examination, Kathy could not remember receiving 15 pennies from Benekin, but agreed that it probably happened. Kathy also could not remember a student from whom Benekin borrowed money, but thought it may have happened with Thomas and Antinette. Kathy also recalled Benekin getting snack cookies from the teachers lounge for the students. Finally, on redirect examination, Kathy could remember only two times that Benekin borrowed money: the 15 cents from her and some money from Thomas. The sworn statement of Racheal corroborates that Benekin took candy from the students and asked them to buy her lunch. The sworn statement of Antinette corroborates that Benekin borrowed a quarter from Thomas. Thomas' sworn statement indicates that Benekin borrowed money from him and other students and that she never repaid him. Thomas also states that one day he had a Snickers bar and he refused to give any to Benekin. Later she saw him take a quarter from her desk and wrote a referral (disciplinary slip) for taking it. When he gave her a piece of candy, she let him throw away the referral. Based on this direct evidence and corroborative evidence, it is found that Benekin did borrow money from Kathy and Thomas and that she did take candy or food from students. Derogatory Statements Ray testified on direct that one time it stunk in the classroom and Benekin said that probably one of the girls was on her period. On cross examination, Ray acknowledged that Benekin explained to the class that if a student has a body odor, they are to come to her and she will let them go wash their body and apply a deodorant and that they are all human. Kathy remembered Benekin saying on one occasion something about someone smelling in the classroom. Benekin simply said something about an odor in the classroom. Kathy never heard Benekin put students down in class. If she had something to say to them, she would call them over to her desk and tell them. Kathy never heard her say it out loud in class. The only corroborative evidence in this regard is the principal's report which states that Kenyatta told the investigator that "Benekin made her feel bad in class by telling her that she (Kenyatta) smelled like she had been having sex." Kenyatta's sworn statement makes no mention of this and there is no showing that if statement was even made, whether it occurred in the hearing of other students. Thomas also told the investigator that one time he told Benekin that it smelled bad in the classroom and Benekin replied, "It must be one of my girls on their period." The allegation in the Administrative Complaint is that Benekin made derogatory statements about students in the presence of other students, including statements that they smelled bad. The evidence does not support this allegation. At worst, Benekin on one occasion made a general statement that a bad odor in the classroom must be the result of one of the girls being on her period. This is not a derogatory statement about a particular student and did not expose a student to unnecessary embarrassment or disparagement. A finding cannot be made based on the hearsay statement of the principal which reported the hearsay statement of Kenyatta since neither hearsay statement corroborates admissible evidence. Benekin's Use of Drugs While there is insufficient evidence to support a finding that Benekin asked students where to buy drugs, Benekin's own testimony is that she discussed drugs with students as part of a class project on drugs. In cross examination, Benekin acknowledged that she entered a hospital for treatment of chemical dependency on cocaine. She entered this hospital on approximately February 20, 1987, when she became aware of the principal's investigation. During the conference with the principal on that day, Benekin asked Mr. Randolph for help and asked for the necessary papers to request a medical leave of absence. Randolph understood that Benekin was referring to medical assistance for a drug problem. The medical program which Benekin entered is a two-year program with a 30-day inpatient component. Benekin completed the 30-day component and remains involved in the after care component. Effect of the Investigation As a result of the rumors and accusations made by students against Benekin, as revealed in the principal's investigation, Randolph expressed the opinion that Benekin was no longer effective as a teacher, that her effectiveness in the school had diminished and that her presence was a detriment to the faculty and the student body. No opinion was expressed regarding loss of effectiveness if the allegations were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Education, Education Practices Commission, enter a Final Order dismissing the Administrative Complaint filed against Mary C. Benekin. DONE and ENTERED this 16th day of May, 1988, in Tallahassee Florida. DIANE K. KIESLING 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 May, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-5658 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Education Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2. Proposed finding of fact 2 is adopted in substance as modified in Finding of Fact 2. Proposed finding of fact 7 is adopted in substance as modified in Finding of Fact 33. Proposed findings of fact 3 and 4 are unnecessary. Proposed finding of fact 6 is irrelevant. Proposed findings of fact 5 and 8-21 are subordinate to the facts actually found in this Recommended Order. While each contains one or more statements which are true, the contents of each, taken as a whole, do not agree with the facts found herein. Additionally, there is an element of argument contained bin these paragraphs which are not adopted herein. Proposed findings of fact 22 and 23 are argument and are therefore rejected as findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Mary C. Benekin The proposed findings of fact filed by Respondent are intermixed with conclusions of law and argument. Further, extensive additional facts, not made a part of the record, are presented. Accordingly, Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except to the extent that they are unsupported by the competent substantial evidence or that they are argument. COPIES FURNISHED: Betty Steffens Attorney at Law 106 South Monroe Street Tallahassee, Florida 32301 Ms. Mary C. Benekin Route l, Box 249-E Pineville, South Carolina 29468 Martin Schaap, Administrator Professional Practices Services 319 W. Madison St., Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Room 418, Knott Building Tallahassee, Florida 32399 =================================================================
The Issue The issues to be determined are whether Respondent, Jean- Baptiste Guerrier, made inappropriate comments to, or engaged in inappropriate conduct with, female students, or inappropriately discussed the topic of sex with his class, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals holding Florida educator's certificates. Mr. Guerrier held Florida Educator's Certificate 596926, covering the areas of English and middle grades, which was valid through June 30, 2015. At all times pertinent hereto, Mr. Guerrier was employed as a vocational education teacher at D.A. Dorsey Education Center School in the Miami-Dade County School District. Mr. Guerrier primarily taught English to students who had dropped out of school earlier and were returning for vocational education. Some of his students were adults, and some were still minors. On August 2, 2012, Ms. Ana Sanchez, an investigator for the Miami-Dade County School Board, received a case alleging that Mr. Guerrier had made inappropriate comments of a sexual nature to his students and had inappropriately touched female students. Ms. Sanchez interviewed students and prepared an investigative report detailing what each student told her regarding Mr. Guerrier's conduct in class. She did not personally observe Mr. Guerrier's conduct in the classroom. On September 6, 2012, Mr. Guerrier wrote a letter to Ms. Anne-Marie DuBoulay, the district director of the Office of Professional Standards. In the letter, Mr. Guerrier indicated that he had read the allegations and that he denied them. On or about October 5, 2012, the Miami-Dade County School District notified Mr. Guerrier that he would be recommended for suspension without pay and dismissal. On or about October 8, 2012, Mr. Guerrier submitted his resignation from his position at the Miami-Dade County School District. On October 10, 2012, Ms. DuBoulay prepared a memorandum for the file indicating that Mr. Guerrier had resigned and that the investigative information had been transmitted to Professional Practices Services of the Florida Department of Education. On August 12, 2013, an Administrative Complaint was filed against Mr. Guerrier by the Commissioner. It was subsequently sent to the Division of Administrative Hearings. At hearing, Ms. Sanchez testified that she interviewed several students from Mr. Guerrier's classes. She testified that some students told her that Mr. Guerrier often made inappropriate comments about sex and female anatomy to his students. She testified that students told her that he inappropriately touched students. She testified that students told her that he had asked female students, "What would you do for a grade?" She testified that Elijah Del'Valle, a 21-year-old student, told her that he saw Mr. Guerrier pulling a female student's G-string, confirming the female student's statement to her. The investigative report prepared by Ms. Sanchez indicated that D.W., a 25-year-old female student, told Ms. Sanchez that Mr. Guerrier would make sexual comments to his female students on a daily basis. The report indicates that D.W. told Ms. Sanchez that Mr. Guerrier asked her in class if he could see her private parts and asked "what she would do for the grade." The report indicates that K.L., a minor female student, told Ms. Sanchez that Mr. Guerrier rubbed her stomach and asked her to kiss him. The report indicates that K.L. told Ms. Sanchez that Mr. Guerrier told a story in class about a student who had reported him and that he told his class that the student was mad because he would not have sexual relations with her. The report indicates that K.L. told Ms. Sanchez that Mr. Guerrier told K.L. that her boyfriend "could not handle her." The report says that K.L. told Ms. Sanchez that she witnessed Mr. Guerrier pull G.C.'s underwear in class. The report indicates that J.S., a minor female student, told Ms. Sanchez that Mr. Guerrier always used inappropriate slang terms for female anatomy in class and that she heard Mr. Guerrier ask K.L. to show him her private parts. The report indicates that J.S. told Ms. Sanchez that she saw Mr. Guerrier touching K.L.'s stomach. The report indicates that J.S. told Ms. Sanchez that Mr. Guerrier told one female student, "What if I turn off the lights and tell you to undress?" The report indicates that J.S. told Ms. Sanchez that she did not recall which student Mr. Guerrier made this comment to. The report indicates that Mr. Del'Valle, an adult male student, told Ms. Sanchez that he observed Mr. Guerrier flirting with female students and making sexual remarks in class. The report indicates that Mr. Del'Valle told Ms. Sanchez that Mr. Guerrier would ask his female students what they would do for a grade. The report indicates that Mr. Del'Valle told Ms. Sanchez that he saw Mr. Guerrier pull a student's pants from behind during class and then ask the young lady where she was going. The report indicates that Mr. Del'Valle told Ms. Sanchez that Mr. Guerrier was always looking at the female students when they walked by and would rub his shoulder and arm against them. The report indicates that G.C., a minor female student, told Ms. Sanchez that she saw Mr. Guerrier rub K.L.'s belly area and say, "let me lick that belly ring of yours." The report indicates that G.C. told Ms. Sanchez that Mr. Guerrier is always brushing himself up against the female students. The report indicates that G.C. told Ms. Sanchez that Mr. Guerrier told a story in class about a student who had reported him and that that student was mad because he had not had sexual relations with her. The report indicates that G.C. told Ms. Sanchez that she once asked Mr. Guerrier for help with a lesson and that he pulled her G-string when she was getting up from the chair and pulled her back down. Mr. Guerrier testified at hearing that he did not do any of the things he was accused of. Mr. Guerrier said that his accusers had a motive to fabricate their stories because they were very poor students. He said that some of them slept in class, others texted throughout class, and others did not show up at all. He stated that some of them had no grades in his grading book and that he had no basis to give them a grade. He stated the students went to a counselor and fabricated the stories.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Jean-Baptiste Guerrier. DONE AND ENTERED this 20th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 20th day of June, 2016.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. 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 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice in violation of Section 760.10, Florida Statutes (2009),1 by discriminating against Petitioner based on her gender and by allowing her to be sexually harassed.
Findings Of Fact Respondent is a for-profit Florida corporation owned by Robert J. Morrisseau, Sr. Even though he was Respondent's president, Mr. Morrisseau, Sr., was not usually involved in the company's day-to-day operations. Robert J. Morrisseau, Jr., is Respondent's vice- president. Mr. Morrisseau, Jr., was primarily responsible for the company's operation. He also served as crew supervisor. Most of Respondent's work, which involved installing carpeting and tile in commercial facilities, was performed in locations that required the work crew to travel. Respondent's crew often had to stay in motels. Respondent contracted with an employee leasing company to handle Respondent's payroll and workers' compensation administration. All employees filled out an application provided by the employee leasing company, but Respondent made all hiring and firing decisions. Respondent did not give its employees information regarding Respondent's human resource policies and procedures. Employees were not told what to do when they believed someone in the company was discriminating against them. Petitioner is a female who dated Mr. Morrisseau, Jr., in the fall of 2008. While they were dating, Mr. Morrisseau, Jr., told Petitioner he would give her a job and teach her to lay tile. Petitioner and Mr. Morrisseau, Jr., stopped dating in December 2008. However, Mr. Morrisseau, Jr., made good on his promise to Petitioner, hiring her as a laborer on January 26, 2009. In January 2009, Mr. Morrisseau, Jr., wanted to reestablish a personal relationship with Petitioner. Mr. Morrisseau, Jr., hoped giving Petitioner a job would facilitate that goal. Petitioner was thankful for the job, but she did not want to date Mr. Morrisseau, Jr., again. At all times material here, Mr. Morrisseau, Jr., was Petitioner's supervisor. He also employed and supervised Petitioner's sister and her boyfriend and Petitioner's daughter and her boyfriend. Off and on in January 2009 through March 2009, Mr. Morrisseau, Jr., supervised a crew laying carpet and tile in Spanish Fort, Alabama. Petitioner and Petitioner's daughter and sister and their boyfriends were also part of the crew on at least two trips to Alabama. Mr. Morrisseau, Jr., rented three motel rooms for the Alabama job. He took one room with one bed. The other two rooms had two beds. On one occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep in the room with him or with her sister and the sister's boyfriend or the other male employees. On another occasion, Mr. Morrisseau, Jr., told Petitioner she could sleep with her daughter and her daughter's boyfriend or the other male employees. On both occasions, Petitioner chose to sleep on the extra bed in a room with one of the couples. Mr. Morrisseau, Jr., never threatened Petitioner, directly or indirectly, with consequences if she did not choose to stay in his room. There is no evidence that Petitioner felt Mr. Morrisseau, Jr., was giving her a quid pro quo choice. Petitioner's job responsibilities included driving company vehicles, preparing floors for tile, and learning to lay tile. She was not expected to carry 40-foot rolls of carpet or to carry heavy loads of tile up three flights of stairs. However, Petitioner was willing to help any way she could. One time in Alabama, Petitioner and her daughter were on their knees, preparing a floor for tile. Mr. Morrisseau, Jr., took pictures of the women from the back and made a comment about the daughter's backside, stating it was as big as a man's. Respondent also had a job in Daytona Beach, Florida. Petitioner was part of the crew that worked in Daytona Beach, along with Mr. Morrisseau, Jr., and several male employees during the weeks of February 27, 2009, and March 2, 2009. Once again, Mr. Morrisseau, Jr., rented three motel rooms. He gave Petitioner the option of staying in the room with him or with the other men. Mr. Morrisseau, Jr., did not think anything of asking Petitioner if she wanted to stay in the room with him because he and Petitioner had stayed in the same hotel room previously on other occasions. During the weeks of February 27, 2009, and March 2, 2009, Petitioner elected to stay in the room with her co-workers rather than in the room with Mr. Morrisseau, Jr. There is no evidence that Petitioner believed Mr. Morrisseau, Jr., was giving her a quid pro quo choice. On one trip to Daytona Beach, Florida, Mr. Morrisseau, Jr., and another male employee bought cocaine and brought it back to the motel. Petitioner does not deny that she used some of the cocaine that night. The next morning, the crew, including Petitioner, went back to work at 7:30 a.m. On March 11, 2009, Respondent fired Petitioner. During the hearing, Mr. Morrisseau, Jr., testified that he did not fire Petitioner because she used drugs in Daytona Beach. This testimony is contrary to a statement made by Mr. Morrisseau, Sr., in an e-mail dated December 7, 2009. During the hearing, Mr. Morrisseau, Jr., testified that Petitioner was not fired because she was a woman and inadequate to perform the work. However, Petitioner and other employees heard Mr. Morrisseau, Sr., and Mr. Morrisseau, Jr., state that Petitioner and her daughter, as females, were inadequate for the job and/or that women did not need to work out of town. According to Mr. Morrisseau, Jr., he fired Petitioner because, after returning from Daytona Beach, Petitioner's work was not satisfactory. He claims that she failed to report for work because she was using illegal drugs with her boyfriend. He also claims that Petitioner was fighting with other employees, referring to an alleged altercation between Petitioner and her daughter. Mr. Morrisseau, Jr., admitted during the hearing that he had no first-hand knowledge that Petitioner continued to use drugs after returning from Daytona Beach. He did not see Petitioner fighting with other employees. Mr. Morrisseau, Sr., testified at hearing that he had no issue with Petitioner's work the one weekend he went to the Alabama job. According to Mr. Morrisseau, Sr., Petitioner "worked her little tail off" that weekend. The reason Mr. Morrisseau, Jr., gave for terminating Petitioner's employment is not credible. The most persuasive evidence indicates that Mr. Morrisseau, Jr., terminated Petitioner's employment because she was a woman and, in his opinion, inadequate to do the job. Respondent also fired Petitioner's daughter on March 11, 2009. However, Respondent rehired the daughter on March 20, 2009. The daughter worked for Respondent until the company went out of business in June 2009. The jobs in Alabama and Florida were not done properly. Mr. Morrisseau, Sr., had to bring in another company to redo and complete at least five jobs. Mr. Morrisseau, Sr., closed down the business and let all employees go in June 2009. Petitioner was unemployed from March 11, 2009, through January 1, 2010. She is entitled to lost wages for that period of time. However, Petitioner failed to present any evidence regarding the amount of lost wages during the hearing.
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, directing Respondent to cease violating Section 760.10, Florida Statutes. DONE AND ENTERED this 16th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th day of June, 2010.
