The Issue The issue in this case is whether Fort Myers Broadcasting Company (FMBC or Respondent) committed an unlawful employment practice against Jaziah Rivera (Ms. Rivera or Petitioner) on the basis of her sex and in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact FMBC operates in an office building located at 2824 Palm Beach Boulevard, Fort Myers, Florida. For at least 20 years prior to September 2018, FMBC outsourced its cleaning needs. In or around August 2018, a management team at FMBC met to discuss its custodial services. The team included Joseph Schwartzel, Jim Schwartzel, Mark Gilson (Mr. Gilson), and Mr. Mayne. Joseph Schwartzel is the general manager of FMBC, and has served in that role for approximately 25 years. Jim Schwartzel, Mr. Gilson, and Mr. Mayne are all senior managers who report directly to Joseph Schwartzel. After the discussion, the management team decided to terminate FMBC’s contract for outside custodial services and hire an in-house custodian. General Manager Joseph Schwartzel was the final decision maker on this matter. In September 2018, FMBC hired Ms. Rivera as a full-time custodial worker. Ms. Rivera was the first in-house custodian hired by FMBC in its history. Her job duties included generalized cleaning like sweeping, mopping, taking out the trash, dusting, restocking supplies in the bathrooms, and vacuuming. Ms. Rivera reported directly to Mr. Mayne, who served as FMBC’s Chief Engineer. During Ms. Rivera’s entire time at FMBC, Mr. Mayne was her direct supervisor. Ms. Rivera’s weekly scheduled hours were Monday through Friday, 9:00 a.m. to 6:00 p.m. She sometimes altered those hours and worked from 10:00 a.m. to 7:00 p.m. Ms. Rivera testified that she would sometimes work “after hours or on the weekend” if she had to make up missed time. FMBC received complaints from employees that some areas at FMBC were not being stocked/cleaned properly or in a timely fashion. Mr. Mayne spoke to Ms. Rivera about the complaints. Ms. Rivera complained to Mr. Mayne that the amount of cleaning she was required to complete was too much for one person and that she needed assistance. In or around December 2018, FMBC hired an in-house, part-time custodial worker to assist Ms. Rivera with the cleaning duties. The part-time custodian was quickly relieved of her duties, because she proved to be unreliable. In April 2019, Ms. Rivera complained that she was experiencing back pain and was unable to take out the trash. She provided FMBC with a doctor’s note which stated that she was not allowed to lift items that weighed more than 15 pounds. FMBC proposed several accommodations to assist Ms. Rivera in taking out the trash, including providing a rolling bin to push the trash to the dumpster. On several occasions, Mr. Mayne also provided two to three non- custodial employees, from the engineering department, to assist Ms. Rivera with taking out the trash. In April 2019, FMBC hired another part-time employee, Imari Porter (Ms. Porter), to help Ms. Rivera with the cleaning duties. Ms. Porter is Ms. Rivera’s sister. In April 2019, FMBC’s upper management team—Joseph Schwartzel, Jim Schwartzel, Mr. Gilson, and Mr. Mayne—met several times over a two- week period to discuss its custodial needs. The team made the decision to eliminate the full-time and part-time in-house custodian positions and return to outsourcing the custodial services. As the general manager, Joseph Schwartzel was, again, the final decision maker. Joseph Schwartzel testified about the reasoning behind FMBC’s decision to move back to its out-sourced custodial services model. He stated as follows: Well, basically, I think, we discovered that we had made a mistake trying to have an in-house custodial position. We thought it was a good idea to begin with as we could have someone work during the day when most the employees were there and provide cleaning services while people were at the office. And if there were spills or things like that, there would be someone immediately available to try and remedy the situation. So it sounded good. What we didn’t realize is how difficult it would be to cover if someone wasn’t there. If they were out sick, if they were on vacation, things of that nature. In Ms. Rivera’s case, where she had a health issue, all of a sudden we were scrambling, trying to figure out how to get the facility cleaned. And we didn’t have anyone else that could do that on the long- term basis. So it became very problematic. Thus, instead of, you know, having an in-house custodial position, we elected to go back to a third party to do it. On April 22, 2019, FMBC terminated Ms. Porter, less than one month after hiring her. The next day, on April 23, 2019, Mr. Mayne and Karen Seiferth (FMBC’s human resources manager) met with Ms. Rivera. Mr. Mayne terminated Ms. Rivera. FMBC immediately returned to its past arrangement of outsourcing its cleaning needs—on April 23, 2019, the same day Ms. Rivera was terminated, FMBC signed a contract with ABC International Cleaning Service. As of the date of the final hearing, FMBC continued to outsource its cleaning and still contracts with ABC International Cleaning Service. Sexual Harassment Allegations Ms. Rivera testified that Mr. Mayne sexually harassed her during her entire period of employment with FMBC. Ms. Rivera testified that Mr. Mayne subjected her to sexual harassment in the following ways: by staring at Ms. Rivera and looking at her body parts, as if he was “undressing [her] with his eyes”; brushing past her on one occasion, causing his leg to “graze” her buttocks; and making comments about her khaki pants and her buttocks being “big.” Ms. Rivera also testified that Mr. Mayne frequently asked her “to go out for drinks” and that she perceived those invitations as sexual advances. Ms. Rivera testified that she rejected Mr. Mayne’s advances, but did not complain about his behavior to anyone at FMBC. Ms. Rivera alleges that she was terminated for refusing to engage in a sexual relationship with Mr. Mayne. Ms. Rivera claims that after she was fired, Mr. Mayne sent her inappropriate sexual messages, pictures, and a video through social media. It is undisputed that, to the extent this claim is true, it happened well after Ms. Rivera was terminated from FMBC. Ms. Rivera submitted a Technical Assistance Questionnaire (TAQ), dated April 9, 2020, to FCHR, which initiated an investigation into her complaints against FMBC. In the TAQ, Ms. Rivera set out the events that occurred during her time at FMBC that she believed to be discriminatory. The majority of Ms. Rivera’s complaint was based on what appears to be allegations of disability discrimination. The only mention of sexual harassment was at the conclusion of her statement. Therein, she stated: “Now present day Mike Mayne is harrassing me by pursuing me thru social media planforms, sending inappropriate images (private part) to try to get me to engage is some type of sexual relationship & offering support to me.” (errors in original). Ms. Rivera’s allegations that Mr. Mayne was sexually harassing her through social media were described as occurring “now” in the “present day,” which, at that time, would have been nearly a year after she was terminated from FMBC. Ultimate Findings of Fact Ms. Rivera’s testimony that Mr. Mayne sexually harassed her while she worked at FMBC is not credible. Ms. Rivera failed to prove that Mr. Mayne sexually harassed her at work, that she was subjected to a hostile work environment, or that she was terminated for not acquiescing to quid pro quo sexual harassment. Accordingly, Ms. Rivera failed to meet her burden of proving that FMBC committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Rivera’s Petition for Relief. DONE AND ENTERED this 10th day of May, 2021, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Zandro E. Palma, Esquire Zandro E. Palma, P.A. Suite 1500 9100 South Dadeland Boulevard Miami, Florida 33156 Suzanne M. Boy, Esquire Boy Agnew Potanovic, PLLC 4415 Metro Parkway, Suite 110 Fort Myers, Florida 33916-9408 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Did Respondent, Jennifer Abadie, R.R.T., violate sections 468.365(1)(q), 468.365(1)(x), 456.072(1)(v), or 456.063(1), Florida Statutes (2018),1/ by committing sexual misconduct?
Findings Of Fact Section 20.43 and chapters 456 and 468, Florida Statutes, charge the Board with regulating the practice of respiratory care in Florida. Ms. Abadie is a licensed registered respiratory therapist in Florida. Ms. Abadie worked for Comprehensive Healthcare of Clearwater (Comprehensive) from October 24, 2017, through February 4, 2018, at its Pinellas County, Florida, location. Comprehensive is a residential rehabilitation and nursing facility. Ms. Abadies’s 89-year-old father was a patient at Comprehensive from before she started working there until his death. He suffered from dementia. Ms. Abadie visited her father frequently, before and after her shifts and when she was not working. G.B. was a severely ill patient at Comprehensive trying to recover from multiple strokes. G.B. was only 56 years old. However, he had extensive medical conditions. They included hypertension, congestive heart failure, fibromyalgia, diabetes, blindness and end-stage renal (kidney) disease. G.B. received dialysis three times a week for his kidney disorder. He took dozens of medications daily. G.B. also had a tracheostomy. A tracheostomy is a tube that goes into the trachea to help people with impaired breathing breathe. The heavy treatment load weighed on G.B. psychologically and caused him anxiety and depression. Ms. Abadie provided respiratory therapy services to G.B. G.B. recognized Ms. Abadie from an earlier time when she worked at Florida Hospital where he had been a patient. He reminded her of that time and established a friendship with her. Over time, the friendship grew closer. As a result of their friendship and Ms. Abadie's compassion for G.B., Ms. Abadie and G.B. spoke regularly. When Ms. Abadie visited her father, she usually checked on G.B. He and Ms. Abadie talked about the range of subjects that acquaintances talk about including families, children, marital status, holiday plans, and day-to-day lives. They spoke regularly by telephone as well as in person. Although they spoke regularly, Ms. Abadie and G.B. did not always speak at length. Sometimes she just waved and poked her head in to say hello. At G.B.'s request, Ms. Abadie brought him items from outside the facility, such as toiletries and a blanket. G.B. grew very fond of Ms. Abadie and wanted her as his girlfriend and eventually his wife. Ms. Abadie did not encourage or reciprocate these feelings or intentions. Lisa Isabelle was G.B.'s only other visitor. G.B. was a friend of her husband. She had known G.B. for most of their lives. Ms. Isabelle rented G.B. a residence on her property. Ms. Isabelle described her relationship with G.B. as "love-hate." Ms. Isabelle held a durable power of attorney for G.B. His family lived out of town and decided it would be good for somebody local to hold the power of attorney. On Sunday, February 4, 2018, Ms. Abadie came to Comprehensive to visit her father. She wanted to watch the Eagles play in the Super Bowl with him. Their family is from Philadelphia. Ms. Abadie stopped at G.B.'s room first. Charity Forest, L.P.N., was on-duty that day. G.B. was one of her patients. Towards the end of the first of her two shifts, Ms. Forest noticed that the curtain by G.B.’s bed was pulled halfway around his bed, which was unusual. The door was open. Ms. Forest entered G.B.’s room and looked around the curtain. She saw G.B. and Ms. Abadie sitting on the bed, on top of the covers. The head of the bed was raised about 45 degrees to provide a backrest. G.B. was wearing long pajama pants but not wearing a shirt. Ms. Abadie was wearing jean shorts, a T-shirt, and Keds®. Ms. Abadie was resting her feet on her iPad® so she would not dirty the covers. G.B. and Ms. Abadie were not touching each other. They were talking, watching television, and looking at pictures on Ms. Abadie's telephone. The room was a two-bed room. There was a patient in the other bed. Ms. Forest thought that the two sitting on the bed was inappropriate and left in search of her supervisor. Ms. Forest could not locate her supervisor. But she met another L.P.N., Ruth Schneck. Ms. Forest told Ms. Schneck what she had observed. Ms. Schneck went to G.B.'s room. The door was open. Ms. Schneck briefly entered the room. G.B. and Ms. Abadie were still sitting on the bed. Ms. Schneck left immediately, closing the door behind her. She joined the search for the supervisor. Neither Ms. Schneck nor Ms. Forest could locate the supervisor. While looking for the supervisor, Ms. Forest and Ms. Schneck encountered Sean Flynn, L.P.N. They told him what they had seen. Mr. Flynn was a licensed practical nurse and a case manager at Comprehensive. He had come to the facility briefly that day in order to take care of some paperwork. After talking to Ms. Forest and Ms. Schneck, Mr. Flynn went to G.B.’s room and opened the door. Ms. Abadie and G.B. were sitting on the edge of the bed facing the door. Mr. Flynn asked them if anything was going on. They said no. Mr. Flynn left the room and called Nicole Lawlor, Comprehensive's Chief Executive Officer. Ms. Lawlor told Mr. Flynn to return to G.B.'s room, instruct Ms. Abadie to leave, and tell her that she would be suspended pending an investigation. He returned to G.B.'s room with Ms. Forest and Ms. Schneck. G.B. and Ms. Abadie were still sitting on the bed. Mr. Flynn asked Ms. Abadie to step outside. She did. G.B. soon followed in his wheelchair. Mr. Flynn told Ms. Abadie that she was suspended and had to leave. G.B. overheard this and became very upset and aggressive. He insisted that Ms. Abadie was his girlfriend and that he wanted her to stay. Ms. Abadie asked to visit her father before she left. Mr. Flynn agreed. Ms. Abadie visited her father for a couple of hours. Ms. Abadie also called Ms. Isabelle to tell her that Mr. Flynn asked her to leave and that G.B. was very upset. After Ms. Abadie's departure, G.B. became increasingly upset and loud. His behavior escalated to slamming doors and throwing objects. Comprehensive employees decided G.B. was a danger to himself and others and had him involuntarily committed under Florida's Baker Act at Mease Dunedin Hospital. On her way home, Ms. Abadie received a telephone call offering her full-time employment at Lakeland Regional Hospital. February 4, 2018, at 6:08 p.m., Ms. Abadie submitted her resignation from Comprehensive in an e-mail to Ms. Lawlor. Ms. Abadie's only patient/caregiver relationship with G.B. was through her employment with Comprehensive. As of 6:08 p.m. on February 4, 2018, G.B. was not a patient of Ms. Abadie. She no longer had a professional relationship with him. Ms. Lawlor suspended Ms. Abadie on February 4, 2018. She based her decision on the information that Ms. Forest, Ms. Schneck, and Mr. Flynn told her, not all of which is persuasively established or found as fact in this proceeding. Still, Ms. Lawlor's memorandum suspending Ms. Abadie reveals that the nature of G.B.'s relationship with Ms. Abadie and the events of February 4, 2018, were not sexual. Ms. Lawlor's Employee Memorandum suspending Ms. Abadie does not identify a state or institution rule violated in the part of the form calling for one. She wrote "Flagrant violation of code of conduct." The description in the "Nature of Infraction" section of the form reads, "Employee was found cuddling in bed with a resident during her time off." There is no mention of sex, breasts, genitalia, or sexual language. None of the varying and sometimes inconsistent accounts of the day mention touching or exposure of breasts, buttocks, or genitalia. None of the accounts describes or even alludes to sex acts or statements about sex. The only kiss reported is a kiss on the cheek that G.B. reportedly forced upon Ms. Abadie as she was leaving. The deposition testimony of the Board's "expert," offers many statements showing that what the Board complains of might be called "inappropriate" or a "boundary violation" but does not amount to sexual misconduct. He testified about the strain a patient expressing romantic feelings toward a therapist puts on the professional relationship. He says the professional should tell the patient that the statements are inappropriate. The witness says that if the patient starts expressing the romantic feelings by touching the therapist, the therapist must tell the patient that his behavior is inappropriate and begin recording the events for the therapist's protection so that "no inappropriate allegations are made later." (Jt. Ex. 3, p. 3). Asked his opinion about allegations that Ms. Abadie was laying on G.B.'s bed, the witness says the behavior "crossed a professional boundary" and that he was not aware of the "behavior being appropriate in any situation." (Jt. Ex. 3, p. 16). The witness acknowledged that a hug is not inherently sexual. (Jt. Ex. 3, pp. 24 & 30). In addition, the training and experience of the witness do not qualify him as someone whose opinion should be entitled to significant weight. Among other things, he has never written about, lectured about, or testified to an opinion about sexual misconduct. Had the deposition not been offered without objection, whether the testimony would have been admissible is a fair question. § 90.702, Fla. Stat. After February 4, 2018, Ms. Abadie attempted to continue her friendship with G.B. by telephone calls and visits. However, Comprehensive refused for several weeks, against G.B.'s wishes, to allow Ms. Abadie to visit G.B. and would only permit Ms. Abadie brief, supervised visits with her father. G.B. was very upset by Comprehensive's prohibition of visits from Ms. Abadie. He began refusing food and treatment, including medications and dialysis. G.B.'s condition deteriorated to the point that he was admitted to hospice care. At that point, on February 24, 2018, Comprehensive contacted Ms. Abadie and gave her permission to visit G.B and lifted restrictions on visiting her father. A February 27, 2018, e-mail from Shelly Wise, Director of Nursing, confirmed this and admitted that the Agency for Health Care Administration had advised that G.B.'s right as a resident to visitors trumped Comprehensive's concerns. Ms. Abadie resumed visiting her friend, G.B. On May 21, 2018, G.B. passed away. G.B. was a lonely, mortally ill man. He initiated a friendship with Ms. Abadie that she reciprocated. Ultimately, he developed unfounded feelings about her being his girlfriend and them having a future together. The clear and convincing evidence does not prove that the relationship was more than a friendship or that it was sexual in any way.
Conclusions For Petitioner: Mary A. Iglehart, Esquire Christina Arzillo Shideler, Esquire Florida Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623
Recommendation Based on the preceding Findings of Fact and Conclusions of Law, it is recommended that Petitioner, Department of Health, Board of Respiratory Care, dismiss the Administrative Complaint. DONE AND ENTERED this 17th day of July, 2019, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2019.
The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 5th day of March, 1992.
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 The issue in this case is whether a district school board is entitled to dismiss a teacher for just cause based principally upon the allegation that he failed to prevent or stop two students from engaging in oral sex in his classroom.
Findings Of Fact The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Ismael Delgado ("Delgado") had been employed as a teacher in the Miami-Dade County Public School System for approximately 12 years. At all times relevant to this case, Williams was assigned to Booker T. Washington Senior High School, where he taught students with disabilities. The alleged events giving rise to this case allegedly occurred on December 6, 2004. The School Board alleges that on that date, during Delgado's fourth-period class, a female student named R. B. fellated a male student named D. B., while Delgado busied himself on the computer, paying no attention to the brazen carnality on display in his presence. The School Board charges that at about 11:15 a.m., a young man named K. M.——who was not a student of Delgado's——chanced to enter Delgado's locked classroom (somehow without attracting Delgado's attention) to check up on R. B. at precisely the moment she happened to be orally stimulating D. B.'s penis. K. M. was purportedly shocked to see this behavior——too shocked, evidently, to mention anything about it to Delgado, who allegedly remained glued to his computer, oblivious. K. M. later reported the alleged incident to another teacher, investigations ensued, and Delgado ended up being accused effectively of causing the students' sexual misconduct, for which the School Board now wants to fire him. Delgado consistently has maintained——and testified at hearing——that nothing extraordinary occurred in his classroom on December 6, 2004. He claims that he neither saw nor heard R. B. and D. B. engage in any sexual activity; indeed, Delgado insists that such behavior could not possibly have taken place in his presence. The undersigned fact-finder believes Delgado's testimony in this regard, which is more credible and persuasive than the evidence to the contrary, and finds, on the record as a whole, that the evidence is insufficient to establish that R. B. and D. B. engaged in oral sex in Delgado's presence, as charged. Because Delgado witnessed nothing of the sort alleged, it is difficult to make affirmative findings concerning what, if anything unusual, occurred in Delgado's classroom on December 6, 2004. Compounding this difficulty, the students who testified were poor witnesses. The School Board called four purported eyewitnesses to the alleged sexual act: R. B. and D. B., the alleged participants; K. M., the student who serendipitously caught the two flagrante delicto; and A. S., another student in Delgado's class. Each one individually came across as an unreliable witness. None seemed to possess (or was able to articulate) a clear and precise memory of the remarkable alleged events, yet each recounted details that struck the undersigned as being implausible at best. Moreover, taken together, their stories are inconsistent and, in material respects, irreconcilable. In support of these general observations, the undersigned will add the following particular findings, to underscore the care with which the evidence has been weighed. As mentioned, the students who testified gave conflicting accounts about what occurred. The points in conflict are not mere minor details, as the School Board argues, but rather involve material facts, such as when the alleged sexual act took place and what Delgado was doing at that time. The details are critical because it is not enough for the School Board to prove that R. B. and D. B. engaged in oral sex on December 6, 2004. In addition, the School Board alleged and must prove that the sex act took place in Delgado's classroom, while he was present; that Delgado knew or should have known what was going on; and that Delgado failed to take reasonable steps to prevent or stop the students from having oral sex. The following table presents a summary of the eyewitness testimony regarding six basic questions raised at hearing: R. B. D. B. A. S. K. M. When did act occur? In the morning, right before, and continuing after, the bell rang. In the middle of class. It was at the end of class, when the bell rings. Class was over. Before lunch; the bell rang at 11:50 a.m., so between 11 a.m. and 11:30 a.m., but witness is unsure. Before the bell rang. Between 11 a.m. and 11:15 a.m. Before 12:15 p.m. K. M. came after the class was over. Where did At R. B.'s desk, in the At the front of At the At a desk. act occur? front of the class. the room. teacher's desk in the back. (A. S. had to turn around to see.) Where was Delgado? Before the bell rang, at his desk, in the back of the room. After the bell, he was in hallway. At the board, on one side of the classroom, facing away from the students. At the board. Behind the computer. What was Delgado doing? Before the bell, looking at "perfume" on the computer; he didn't see the act. After the bell, Delgado was in the hallway, watching students. Writing on the board with a marker; he didn't know that students were having sex. Not looking at the computer. Writing a science problem (or something) on the board. He didn't see what was happening. Busy looking at the computer. He didn't see any sexual activities. R. B. D. B. A. S. K. M. What did other students do? No one said anything. Students were standing up to shield R. B. and D. B., so Delgado couldn't see the act. Students were not standing up to block Delgado's view. They were playing cards or something. Were other Yes, K. W. & S. J. Yes. T. H. did Doesn't Didn't see that. students Their pants were down something remember; having sex at their ankles. They (unclear). didn't see too? stood by the wall, Also, K. W. that. having regular sex. "jacked" S. J. Students told hem to while they were stop. Delgado couldn’t sitting down at see the couple, but one of the heard the students and teacher's desks. told S. to get off K. No one said They ignored Delgado and continued. anything. Although many discrepancies are obvious, focus on the question of Delgado's whereabouts. Two students placed Delgado behind his computer at the relevant moment. Two others recalled that he was writing on the board. The School Board insists that Delgado was engrossed in his computer; it became invested in this theory during the investigative phase when an examination of the cookies on the hard drive of Delgado's classroom computer turned up electronic evidence that the Yahoo website might have been opened at 11:37 a.m.2 If Delgado were at the computer, however, then both D. B. and A. S. gave unreliable testimony on this significant point.3 Conversely, if D. B. and A. S. were believed, then the reliability of the accounts of R. B. and K. M. would be brought into question. The inconsistencies ultimately undermine the credibility of each of the student witnesses. Apart from the testimonial inconsistencies, none of the students, considered individually, impressed the undersigned as being a trustworthy witness. R. B.'s testimony was vague and childlike, offering little on which the fact-finder could get any traction. Her story, in a nutshell, is that D. B. and some other students goaded her into performing oral sex on D. B., to which she reluctantly consented in the vain hope that compliance would put an end to persistent prodding. R. B. also testified that while she was sucking on D. B.'s penis, two other students (S. J. and K. W., a male and female) were standing by the wall, their pants down at their ankles, having regular sex. This latter is beyond belief and suggests to the undersigned that R. B. has difficulty distinguishing fantasy from fact. That being the case, the undersigned considers her testimony unreliable and has discounted it accordingly. D. B.'s version of the alleged event differs from R. B.'s in one immediately apparent respect: as D. B. tells it, he was practically the victim, R. B. the aggressor who pulled down his pants and commenced sucking on his penis against his wishes. This is unlikely——almost absurd, the undersigned thinks——but D. B.'s testimony in this regard is notable insofar as it exposes a desire (also evident, incidentally, in R. B.'s testimony) to shift the blame——for whatever happened——to someone else. Like R. B., D. B. testified that other students also engaged in sexual activity that morning in Delgado's classroom. In particular, D. B. asserted that K. W. had "jacked" S. J. (i.e. masturbated his penis) while the couple had been sitting down at one of the teacher's desks. The undersigned believes that D. B.'s testimony about K. W. and S. J. is most likely a fabrication.4 Having given testimony that is probably untrue, D. B.'s credibility is suspect and his testimony as a whole must be discounted. A. S. testified that on the morning in question, he turned around and saw R. B. and D. B. at the teacher's desk in the back of room, R. B.'s mouth on D. B.'s penis. Apparently witnessing two classmates openly engaging in a sexual act was not a remarkable event for A. S., for he claims to have looked away and said nothing to the teacher (who was, according to A. S., writing a problem on the board at the time). The undersigned considers this to be implausible. He can scarcely believe that a student in A. S.'s supposed position would react in the blasé manner that A. S. described. The testimony as a whole is not credible. K. M.'s testimony is full of improbabilities. To begin, the undersigned is skeptical that K. M. just happened to be running an errand for his teacher in the middle of fourth period, allowing him to detour to Delgado's classroom to check up on R. B.——whom, he said, he treated "like a sister"——at the very moment she was performing fellatio on D. B. This is too contrived to be believable. Second, the undersigned does not believe that K. M. could have entered Delgado's classroom—— which, it is undisputed, was locked while class was in session—— without Delgado knowing about it, which is what K. M. claims occurred. Third, the undersigned rejects as incredible K. M.'s testimony that he stood watching R. B. suck on D. B.'s penis for a considerable period of time (several minutes), unobserved by Delgado, without saying anything to the teacher. Fourth, the undersigned disbelieves K. M.'s testimony that he slipped out of the secure classroom unnoticed by Delgado. Finally, K. M. testified at hearing with some certainty that he had reported the incident the next day, after carefully considering whether to do so. Yet, the contemporaneous written record reflects that he reported the matter within hours after its alleged occurrence. Standing alone, this latter would be a relatively minor discrepancy. But viewed in the light of other facially improbable details, this discrepancy is more troubling. All things considered, the undersigned harbors genuine doubt regarding K. M.'s reliability as a witness. The School Board offered the unsworn written statements of eight students, including the four who testified at hearing. These are hearsay and hence can be used, if at all, only to supplement or explain other admissible evidence.5 To give a flavor of the nature and quality of the evidence presented in support of the charges against Delgado, the undersigned will reproduce the statements of the non-testifying students below.6 S. J.7 gave a statement dated December 8, 2004, wherein he recounted:8 it happen when [R. B.] was siting between [D. B.] legs and when I went to get my paper from the printer and I turn around I seen [R. B.] sucking [D. B.] penis I was not the only one seen them [K. M.] seen them also this happen 2 minutes before the bell rang that how the other person which is [K. M.] seen them when he walk into the room and seen them thats how everything started. I was not involved with them. J. signed another statement, dated December 14, 2004, in which he wrote: When the problem happen the teacher was right in front of them but he told her to stop but she wouldnt. He told her plenty of times to go down stairs to see Ms. Thomas but she wouldnt. but when they were doing it in the corner in he see them crowed around he gets up to see what's going on thats the only time he gets up to see. the problem doesn't occur now scense she not in the class anymore. K. W.'s9 December 7, 2004, statement provides as follows: when she came in she started to play with [nickname deleted] and he said to leave him and still cap playing with and he got up side on the other side of the classroom and teacher her to stop she cap on playing with him and I when to sleep after that I does not know that they had sex or not. T. H. gave two written statements. The first, dated December 7, 2004, states: I was seating down on the char in I sha [D. B.] in [R. B.] [R. B.] was sukin [D. B.] penis two times. H.'s second statement is dated December 10, 2004. Therein he wrote: Mr. Dilgado trys to stop hus from having six bet we keep on going in he call ower house bet we cap on going. N. H. provided two statements, neither of which is dated. In one he wrote: [D. B.] in [R. B.] was having sex in the classroom. I was go to the computer lab. In the other, N. H. added: I feel I Mr. Delgado did not see [R. B.] in [D. B.] have sex in the class. These written statements do not explain or supplement the admissible evidence; to the contrary, if accepted they would create additional inconsistencies. Thus, the undersigned has not based any findings of fact on their contents. The undersigned has taken note, however, that out of 15-17 students in Delgado's fourth-period class, fewer than half (seven, to be exact) testified at hearing and/or signed a written statement about the alleged incident that was produced at hearing. This causes the undersigned to wonder what, if anything, the other 8- 10 students in the class witnessed on December 6, 2004. Given the paucity of persuasive evidence, the undersigned is better able to find what was not proved to have happened, than to find what likely happened in Delgado's classroom on December 6, 2004, if anything out of the ordinary. To repeat the key finding above, the School Board failed to prove that R. B. and D. B. engaged in oral sex in Delgado's classroom while he was present. While these students probably did not engage in oral sex, the undersigned believes that there is a slightly better than even chance, and thus he finds, that D. B. briefly exposed his penis in Delgado's classroom after the bell had rung and class had been dismissed, when Delgado was outside of the room monitoring the hallway, which is what he was supposed to be doing at the time.10 The undersigned thinks, based on the evidence presented, that it is reasonably possible (the probability being between, roughly, 25 percent and 35 percent) that R. B. might have placed her mouth on D. B.'s penis, but he cannot make this finding because he is not persuaded that this likely occurred. What is likely, and what the undersigned finds, is that D. B.'s exhibition was a type of taunting, teasing, or sexually harassing behavior directed at R. B. It is found that K. M. likely did enter Delgado's classroom, not during the class period as K. M. claimed, but after fourth period had ended, when Delgado was properly in the hallway and the door to his room was unlocked. It is found that, more likely than not, K. M. then learned about D. B.'s harassment of R. B. It is possible that the incident was already being exaggerated in discussions about what had happened. At any rate, by the time K. M. reported the incident, the facts had become distorted. There is no persuasive evidence that Delgado saw or knew about, or reasonably should have seen or known about, D. B.'s misbehavior, which occurred while Delgado was properly monitoring the hallway between classes. There is no persuasive evidence that Delgado reasonably should have foreseen D. B.'s misconduct or that he reasonably could have stopped or prevented it.11 There is no persuasive evidence that Delgado was in any way the cause of, or responsible for, D. B.'s bad behavior. In sum, the undersigned determines as a matter of ultimate fact that, to the extent anything unusual occurred on December 6, 2004, in Delgado's classroom, it was student misbehavior that took place outside the teacher's presence and beyond the reach of his senses. Delgado neither knew nor should have known that anything untoward was occurring. The student or students who engaged in the misbehavior should have been punished, not the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order: (a) exonerating Delgado of all charges brought against him in this proceeding; (b) providing that Delgado be immediately reinstated to the position from which he was suspended without pay; and (c) awarding Delgado back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 2nd day of March, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 March, 2006.
The Issue The issue is whether Dr. Wise abused his position as a treating psychiatrist for five young women by using his influence over them to engage in sexual relationships with them in violation of Section 458.331(1)(k), Florida Statutes, (1979), [now codified as Section 458.331(1)(j), Florida Statutes (1987)] and whether he is therefore guilty of unprofessional or immoral conduct in violation of Section 458.1201(1), Florida Statutes, (1969) [now codified as Section 458.329, Florida Statutes, (1987)]. If Dr. Wise is guilty of any of these activities, he would also be guilty of violating Section 458.331(1)(x), Florida Statutes (1987), which proscribes the violation of any portion of Chapter 458. Sexual misconduct with patients would also constitute gross or repeated malpractice, which is forbidden by Section 458.331(1)(t), Florida Statutes (1987).
Findings Of Fact At all times material to the Administrative Complaint, Dr. Wise has been a licensed medical doctor, holding license ME0008520. He has been licensed in Florida since 1957 and practices in the area of Adult and Child Psychiatry in Miami. He has been a board certified psychiatrist in since 1965. Patient L. H. From July 1969 through April 1971, Dr. Wise treated L.H, who was 21 years of age. When she began treatment, she was experiencing panic attacks and had other problems resulting from sexual molestation as a child, rape, alcoholism, and family problems. At first she had visited Dr. Wise weekly, but toward the end of her 1 1/2 years of therapy, she saw him every other week. L.H. alleges that shortly before she terminated her treatment with Dr. Wise she had a severe panic attack which caused her to telephone Dr. Wise, who then offered to provide therapy at Dr. Wise's apartment. When she arrived, she says Dr. Wise was in his bathrobe, took her to the bedroom, told her to place her hand on his penis and had sexual relations with her. She also maintains that Dr. Wise saw her on one other occasion in his office, when no sex occurred. L. H. said nothing about Dr. Wise's conduct at the time the incident was to have taken place. Fourteen years later, L.H. was seeing a psychologist in St. Louis, Missouri, Dr. Gertrude Williams. In the course of therapy with Dr. Williams, L.H. stated that she had sexual intercourse with Dr. Wise while she was his patient. This disclosure to Dr. Williams is consistent with the testimony L. H. gave at the final hearing. In October of 1985, L.H. filed a complaint against Dr. Wise with the South Florida Psychiatric Society alleging sexual misconduct, but after a two-day hearing a panel of twelve doctors found against L.H. and in favor of Dr. Wise. The testimony of L. H. was no more persuasive in this case than it was before the Psychiatric Society. In October, 1985, L.H. also filed a complaint which the Department investigated, but found the charges unsubstantiated. No disciplinary action was initiated against Dr. Wise at that time. The evidence in the instant case with respect to the allegations of misconduct by Dr. Wise with L.H. was not clearly convincing or persuasive. Patient S.P. Dr. Wise treated S.P. from July, 1980 through July, 1981 at his office in Miami. She was then approximately 19 years old and had complaints of nervousness, insomnia and hyperventilation. She saw Dr. Wise approximately two times per week (on Tuesdays and Thursdays) for therapy. Although originally seen in the morning, her appointments were changed to late in the afternoon. S.P. alleges that within two months after beginning treatment, while she was sitting on the couch during a therapy session, Dr. Wise got up from another couch, sat down next to her and began to kiss her. She also alleges that during subsequent visits Dr. Wise had sexual intercourse with her. S.P. filed a civil lawsuit for malpractice against Dr. Wise alleging the same sexual misconduct alleged here as the basis for her damage claim. After a jury trial, the jury returned a verdict in favor of Dr. Wise. S.P.'s marriage failed while she was seeing Dr. Wise. She had often stayed out late, and told her husband that she was at therapy sessions with Dr. Wise. It is not clear whether these late night absences from home were actually the result of appointments with Dr. Wise or were the result of other appointments which she justified to her husband by claiming they were appointments with Dr. Wise. After terminating treatment with Dr. Wise, S.P. began seeing a Roman catholic priest who was also trained as a counselor. She told him that she had been seeing a local psychiatrist who, after a few sessions, had engaged in sexual intimacy with her. After moving back to her mother's home due to her breakup with her husband, S.P. also told her mother that she and Dr. Wise had been sexually intimate. These statements by S. P. were consistent with her testimony at final hearing; that the testimony is consistent, however, does not make it persuasive. Taken as a whole, the evidence that Dr. Wise may have engaged in a sexual relationship with S. P. is not clearly convincing. Patient L. M. Dr. Wise treated L.M. during the period from late 1972 through February of 1973. She was sixteen years old and was seeking to improve her relationship with her parents. She alleges that during one of her early visits Dr. Wise questioned her about the pimple on her forehead, and asked whether she had pimples on any other area of her body. She says she responded that she had a pimple on her back, and alleges that Dr. Wise then asked to see her back. When she lifted her pullover, she says Dr. Wise fondled her breasts briefly. Viewing the testimony of L.M. as a whole, the evidence is not clearly convincing that Dr. Wise ever fondled her breasts. Patient K. M. Dr. Wise treated K.M. from 1982, when she was 18 years old, until 1984. K. M. came to see Dr. Wise because of problems including an abortion she had when she was 15 years old, as well as a prior incestuous relationship with her brother. K.M. testified that she would go to Dr. Wise's office for treatment late in the evening, when they also would engage in sexual intercourse. She also testified that in 1985, after she terminated her therapeutic relation with Dr. Wise, she told her general practice physician, Dr. Peter Shea, during an office visit, that she had an affair with Dr. Wise. As with the foregoing witnesses, the statement made to Dr. Shea is consistent with K. M.'s testimony at final hearing, but that consistency does not enhance K. M.'s testimony. The testimony of K.M. concerning liaisons with Dr. Wise is not clearly convincing. Patient L. G. L.G. saw Dr. Wise beginning in April, 1974 when she was 21 years old. When she first came to Dr. Wise she complained of depression, unhappiness, and confusion. She told Dr. Wise that she was lonely and did not have a good relationship with men. Dr. Wise also treated L.G.'s sister, Joan. After about two months of seeing her on a weekly basis, L.G. alleges that Dr. Wise came over to the couch where she was sitting, embraced her, and during the course of the treatment, their physical relationship became more intimate. The intimacies were to have included oral sex which L.G. performed on Dr. Wise, which she thought was therapy for her psychological problems with sexual intimacy. L.G. terminated her relationship with Dr. Wise and began seeing a psychologist at the University of Miami, Edward Rappaport. During the course of treatment L.G. reported to Dr. Rappaport that she had been sexually involved with Dr. Wise. The testimony of L.G. at final hearing is consistent with the statement she made to Dr. Rappaport during therapy that Dr. Wise engaged in sex with her while she was seeing Dr. Wise for professional help. The consistency of the testimony does not make it persuasive. Considering the testimony of L.G. and Dr. Rappaport, the evidence offered to show that Dr. Wise had engaged in sexual intimacies with L.G. while she was seen as a patient is not clearly convincing.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order dismissing the second amended Administrative Complaint filed against Respondent. DONE AND ENTERED this 22rd day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY 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 22rd day of May, 1989. APPENDIX The following constitutes my rulings on Proposed Findings of Fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1987). Rulings on Findings of Fact Proposed by the Department of Professional Regulation Covered in finding of fact 1. Covered in finding of fact 1. Accepted in findings of fact 2, 6, 10, 11 and 12. Covered in finding of fact 11. 6-7. Rejected for the reasons stated in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 9. Rejected as unnecessary. Rejected as unnecessary. Covered in finding of fact 11. 13 Covered in finding of fact 6. Covered in finding of fact 7, of the facts stated that are rejected. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Covered in finding of fact 9. The proposals concerning the telephone calls are rejected as unnecessary. Rejected because the testimony of S.P. was not clearly convincing. Covered in finding of fact 9. Rejected as subordinate to finding of fact 9. Rejected as subordinate to finding of fact 9. Covered in finding of fact 9. Covered in finding of fact 9. To the extent necessary, covered in finding of fact 24. The proposal concerning the telephone calls is rejected as unnecessary. Rejected as unnecessary. 26.-29. To the extent necessary, covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 12. Rejected as unnecessary. Covered in finding of fact 13, although the proposals are rejected because L.G.'s testimony was not clearly convincing. Rejected as unnecessary. Rejected because the testimony of L.G. is not clearly convincing. Rejected as unnecessary. 37.-38. To the extent necessary, covered in finding of fact 13. 39. Rejected as unnecessary. 40. Covered in finding of fact 13. 41.-42. Rejected because the testimony of L.G. was not clearly convincing. 43. Covered in finding of fact 2. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3, although the proposed findings are rejected. Covered in finding of fact 3. Covered in finding of fact 4. Rejected as unnecessary. Rejected because of the testimony of the complaining witnesses has not been clearly convincing. 50.-53. Rejected as unnecessary. 54. Rejected as unnecessary. Rulings on Findings of Fact Proposed By Dr. Wise Rejected as unnecessary. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2 Covered in finding of fact 4. Covered in finding of fact 5. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Rejected as unnecessary. Covered in finding of fact 7. Covered in finding of fact 8. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 11. Covered in finding of fact 12. Covered in finding of fact 12. Covered in finding of fact 12, to the extent necessary. Covered in finding of fact 14. Covered in finding of fact 10. Covered in finding of fact 10. Rejected as unnecessary. Covered in finding of fact 10. Rejected as unnecessary. COPIES FURNISHED: Susan Sewell, Esquire Law offices of Mark P. Lang 20 North Orange Avenue Suite 707 Post Office Box 2127 Orlando, FL 32802-2127 Jonathan King, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Kenneth D. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 130 North Monroe Street Tallahassee, FL 32399-0750A =================================================================
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her sex and by retaliating against her.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). As a Florida non-profit corporation, all of Respondent's activities are governed by its bylaws. Petitioner, a white female, has worked for Respondent off and on during the last five years. Most recently, Petitioner began working for Respondent on January 18, 2008, as a part-time food preparation (prep) worker and a part-time waitress in Respondent's restaurant. Petitioner accepted the job because she had recently left a full-time position with another employer due to the distance of that job from her house. As a prep worker, Petitioner earned a set hourly wage. Petitioner's responsibilities included assisting the chef in preparing meals and cleaning up the kitchen. The chef, Tony Mongone, directed Petitioner's kitchen work but he was not her supervisor. As a waitress, Petitioner earned $3.35 per hour plus tips. On Tuesdays and Fridays, Petitioner earned an average of $100 in tips per shift. Petitioner worked between five and six hours on Tuesday evenings and between five and eight hours on Friday evenings when Respondent served sit-down dinners to its members. On these occasions, Respondent's kitchen served an average of 200 dinners in a two-hour period of time. Petitioner also worked when Respondent catered for banquets and other special occasions. Petitioner worked a total of 41.66 hours in January 2008; 81.5 hours in February 2008; 45.13 hours in March 2008; and 71.17 hours in April 2008. She worked 10.32 hours for the first week in May 2008. Over the course of her 15.4 week term of employment, Petitioner averaged 16.23 hours per week. Although it varied according to the event, there were five to eight other servers or waitresses (all females) working along with Petitioner on any given night. There always were eight-to-10 workers in and around the kitchen, including the servers, the chef, one pizza maker, and the kitchen prep person. At all times relevant here, Linda Ferguson was the club manager and Petitioner's direct supervisor. Ms. Ferguson was responsible for day-to-day management of all club activities with the authority to enforce all club policies. Ms. Ferguson also was in charge of all aspects of hiring and terminating employees and managing volunteer personnel. Ms. Ferguson was in the restaurant on most Friday evenings. When Ms. Ferguson was not scheduled to work, the assistant manager, Carolyn Weeks, was on duty. On Petitioner’s first night as the kitchen prep worker, Chef Mongone was drinking from a pitcher of beer. Early in the evening, Chef Mongone made comments about her breasts, telling her they were nice and asking whether they were real. Later that evening, when the staff was cleaning the kitchen, Chef Mongone walked up behind Petitioner and touched her backside. Petitioner immediately turned on Chef Mongone, telling him assertively, "Don't ever do that again! How would you like it if someone did that to your wife?" Chef Mongone just stood there as Petitioner turned and walked away. Petitioner immediately informed Ms. Ferguson about the incident. Ms. Ferguson inquired whether Petitioner wanted her "to take care of it." Petitioner responded that she felt she "had already done so." Ms. Ferguson spoke to Chef Mongone about his drinking on the job and his inappropriate conduct. Chef Mongone responded in an insubordinate way, denying all allegations of improper conduct. Ms. Ferguson also spoke to Mike Mercante, Respondent's President at that time. Ms. Ferguson complained to Mr. Mercante about Chef Mongone's drinking and offensive conduct. In the following weeks, Chef Mongone sometimes raised his voice at Petitioner and she back at him. On days that Petitioner worked as a waitress, Chef Mongone held up Petitioner's food orders, causing delays in service that resulted in reduced tips for Petitioner. The delays in releasing Petitioner's food orders usually occurred after Petitioner and Chef Mongone exchanged angry words. On or about February 11, 2008, Petitioner was working as a waitress. When she placed her first food order, Chef Mongone began yelling at her for not putting her name and table number on the ticket. When Petitioner reached to retrieve the ticket, Chef Mongone told her not to touch it. At that point, Petitioner started yelling at Chef Mongone. Petitioner admits her response was not nice and describes herself as having "lost it." When Petitioner returned to the kitchen to get her next order, she overheard Chef Mongone telling the kitchen staff that she was stupid because she could not remember to put her name on a ticket. Once again Petitioner's temper got the best of her. Petitioner called Chef Mongone a drunk, triggering another argument with Chef Mongone. Despite the hard feelings between Chef Mongone and Petitioner, Chef Mongone made additional inappropriate remarks to Petitioner. On one occasion, Chef Mongone observed Petitioner wiping her hand on the seat of her pants. Chef Mongone then stated that he "would like to do that, too." On or about February 15, 2008, Petitioner was scheduled to work first as a prep worker and later as a waitress. While she was in the kitchen, she shared a bag of Valentine candy with the staff. When only one piece of candy was left, Petitioner asked Chef Mongone if he wanted it. Chef Mongone replied that he did not want the candy. However, when Petitioner put the candy in her mouth, Chef Mongone made some comment about the way Petitioner sucked the candy. Chef Mongone immediately stated that he did not mean for his comment to come out like it did. Nevertheless, Petitioner was offended and responded in a negative way. Sometime after February 15, 2008, Petitioner wrote a letter to the members of Respondent's Executive Board. The letter details Petitioner conflict with Chef Mongone. Petitioner gave the letter to Ms. Ferguson, who gave it to Mr. Mercante. February 15, 2008, was Petitioner's last day as a kitchen prep worker. From that time forward, Ms. Ferguson scheduled Petitioner to work only as a waitress in order to reduce the time Petitioner would have to spend in the kitchen. On February 20, 2008, Respondent's Executive Board had a meeting. At the meeting, the board members discussed Petitioner's letter. Chef Mongone attended the meeting and denied all allegations. At the conclusion of the meeting, the Executive Board directed one of its members to draft a letter of reprimand for Chef Mongone. In an internal memorandum dated February 22, 2008, Respondent's Executive Board advised Chef Mongone that he had been warned about his rule infractions and general behavior for the past recent months. According to the memorandum, Chef Mongone would receive no further warnings and any future infractions of club rules or Florida law would result in disciplinary action up to and including immediate termination of employment. Respondent does not have a written policy prohibiting sexual harassment. It does have a rule against drinking on duty. On or about May 6, 2008, Petitioner once again became upset at work because the kitchen was crowded and Chef Mongone yelled at her. Petitioner called her husband to complain that Chef Mongone had cursed at her, saying, "Bitch, get the f--- out of the kitchen.” Petitioner also alleged that Chef Mongone was holding up her food orders. When Petitioner's husband arrived at the restaurant, he met Petitioner, Chef Mongone, Ms. Weeks (Assistant Manager), and Lou Barletta (Respondent's Vice President) in the restaurant's parking lot. Petitioner's husband told Chef Mongone that Petitioner would show him respect if Chef Mongone demonstrated respect for Petitioner. The discussion in the parking lot was civil and ended with Chef Mongone and Petitioner's husband shaking hands. After the meeting, Chef Mongone made it clear that he could no longer work with Petitioner and that one of them had to go. Petitioner did not want to go back into the kitchen after the meeting. Ms. Weeks suggested that Petitioner go home until everything cooled down. Petitioner agreed and left the premises. Petitioner was scheduled to work the following Saturday. Before Petitioner reported to work, Ms. Ferguson talked to Mr. Mercante. After that conversation, Ms. Ferguson told Petitioner that she should not come back to work until Ms. Ferguson could replace Chef Mongone. Ms. Ferguson was actively looking for a new chef. After locating a replacement for Chef Mongone, Mr. Mercante would not approve the termination of Chef Mongone's employment. At the end of June 2008, Respondent did not renew Ms. Ferguson's contract. Ms. Weeks replaced Ms. Ferguson as Respondent's General Manager. Due to financial difficulties, Respondent did not hire an assistant manager when Ms. Weeks became the General Manager. Respondent also eliminated all table-busing positions, using volunteers to clear the tables. Respondent has not called anyone back to work after laying them off. Like Ms. Ferguson, Ms. Weeks had problems with Chef Mongone. She eventually hired a new chef and fired Chef Mongone due to his alcohol consumption at work. Petitioner initially drew unemployment compensation from Respondent's place of business. Except for a couple of days of work, Petitioner has been unemployed since May 6, 2008. She is still drawing unemployment compensation from her most recent employer. Petitioner acknowledges that the economy is the reason she has been unable to obtain a job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 25th day of June, 2009, 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 25th day of June, 2009. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Mary Nelson Morgan, Esquire Cole, Stone, Stoudemire, and Morgan P.A. 201 North Hogan Street Suite 200 Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
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 26th day of November, 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 26th day of November, 2007.
