The Issue The issue for determination is what should be the award to Petitioner as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs.
Findings Of Fact Had Petitioner retained her employment with Respondent, she would have earned $161,014.11. However, she actually earned $125,865.87. As a result of Petitioner's being terminated by Respondent, she lost income in the amount of $35,148.24. As a result of Petitioner's being terminated by Respondent, she lost pension contributions in the amount of $7,110.16. Consequently, Petitioner incurred a total monetary loss in the amount of $42,258.41. As to whether Petitioner incurred a break in service, no one from the Division of Retirement was called to testify. Consequently, no evidence was presented as to that issue. Petitioner suggests that she should receive credit for retirement from October 8, 1993, the date of her termination when she was a career service employee, to January 1995, the date that she again became a career service employee. Petitioner's suggestion is a reasonable resolution to the issue of break in service and should be implemented if there exists a break in service. No argument was presented to contradict that the statutory interest rate is ten percent per annum. Petitioner's counsel testified that she expended 437.80 hours on this matter and Petitioner's expert opined that such hours are reasonable. Respondent's expert opined that 241.30 hours are reasonable. Petitioner's expert did not review the index of the official file of this matter, which was maintained by the Division of Administrative Hearings. Respondent's expert reviewed the index online. Further, Respondent's counsel reviewed the Verified Motion, but did not review the file of Petitioner's counsel. Respondent's expert questioned whether Petitioner's counsel personally performed the tasks in certain entries in the Verified Motion or whether a secretary performed the tasks, not whether the tasks were performed. However, Respondent's expert did not question, and did not indicate that he was required to question, Petitioner's counsel on such entries prior to hearing. Regarding such entries, Petitioner's counsel testified that she, not her secretary, performed the tasks in the entries. The testimony of Petitioner's counsel is found credible. Respondent's expert also questioned whether some entries contained adequate detail and specificity to support them, not whether the tasks were performed. The expert's testimony is found to be credible. The detail and specificity are inadequate in the entries identified by Respondent's expert. The lack of detail and specificity dictate a reduction in the number of hours requested by 98.30 hours. Consequently, the number of hours reasonably expended by Petitioner's counsel in this matter is 339.50. Petitioner and her counsel entered into a mixed agreement (Agreement) for representation at $250.00 per hour and for contingent fees. The Agreement provided in pertinent part as follows: agree to pay my attorneys from the proceeds of the gross recovery including costs and fees awarded attorney's fees, if applicable the following fee: * * * b. 40% of any recovery up to $1 million after the filing of an answer or the demand for appointment of arbitrator through the trial of the case; 40% becomes immediately applicable as soon as the matter is set for trial; * * * My attorneys shall be entitled to choose the fee at the hourly rate [$250.00 per hour] if I am entitled to an award of attorneys fees from the client or the contingency, whichever is greater. In the event there is a court-awarded fee which is more than the contingency fee, the attorneys shall keep the court-awarded fee in lieu of the contingency fee provided it is greater than the contingency fee and provided the court-awarded fee is actually collected. The hourly rate of $250.00 by Petitioner's counsel is within the range of rates for this matter. The hourly rate of $250.00 is reasonable. Therefore, the amount of reasonable attorney's fees in this matter is $84,875. Petitioner requests an enhancement of attorney's fees by one-third because of the uniqueness or unusualness of this matter. The evidence is insufficient to demonstrate that this matter is a unique or unusual case involving employment discrimination. Petitioner's counsel requests costs in the amount of $3,094.49. The Verified Motion contains taxable and non-taxable costs.2 Costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. As a result, the reasonable amount of costs is $2,844.48. Petitioner's Verified Supplemental Motion indicates additional attorney's fees associated with this hearing in the amount of $11,200.00, representing 44.80 hours (out of a total of 65.30 hours indicated) at a rate of $250.00 an hour; and additional costs associated with this hearing in the amount of $12,100.91. Regarding the supplemental attorney's fees, no explanation was submitted as to why the entries from June 6, 2003 to August 20, 2003 were not available at hearing. Notwithstanding, the supplemental documentation is sufficiently detailed and specific. As a result, the number of supplemental hours reasonably expended by Petitioner's counsel is 44.80, and the reasonable amount of supplemental attorney's fees is $11,200.00. Regarding the supplemental costs, the cost for the services rendered by Petitioner's experts are included in the $12,100.91. Petitioner obtained the services of an expert on attorney's fees and an expert on lost wages and benefits. For the services rendered by the expert on attorney's fees, the cost was in the amount of $1,775.00. For the services rendered by the expert on lost wages and benefits, the cost was in the amount of $9,006.25. The total cost for the services rendered by the experts is in the amount of $10,781.25. Again, costs identified as fax or facsimile, postage, cab fare, and transportation to and from the courthouse should be excluded as inappropriate. Additionally, regarding costs, Petitioner represents that the parties agreed to equally share in the expense of the court reporter for the hearing, which is shown on the Verified Supplemental Motion as $663.00. Respondent did not refute the representation. Consequently, the reasonable amount of supplemental costs is $12,054.91.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order as to back pay, interest on the amount awarded, retirement system contributions, attorney's fees, and costs: Ordering the Department of Health and Rehabilitative Services n/k/a Department of Children and Family Services (Department) to pay Gloria Garcia (Garcia) back pay in the amount of $35,148.24. Ordering the Department to make contributions to the Florida Retirement System on behalf of Garcia in the amount of $7,110.16. Ordering the re-evaluation of Garcia's break in service by the Division of Retirement. Further, ordering that, if it is in compliance with and satisfies applicable statutes and rules of the Division of Retirement, Garcia receive credit in time for retirement from October 8, 1993, the date of her termination, to January 1995, the date that she again became a career service employee. Ordering the Department to pay to Garcia's counsel attorney's fees in the amount of $96,075.00 and costs in the amount of $14,899.39, totaling $110,974.39. Ordering the statutory interest rate of ten percent per annum be applied to the amounts awarded. DONE AND ENTERED this 22nd day of October, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 22nd day of October, 2003.
The Issue Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on misconduct in office, which occurred on January 12, 1989. Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on gross insubordination or willful neglect of duty for failure to follow a prior directive from his principal not to physically touch a student, except under very limited conditions. Whether such actions of Respondent are so violative of the legitimate expectations of professional conduct of a teacher as to impair the effectiveness of service to the school district by the Respondent and to pose a serious danger to the continued safety, health and welfare of the students of Orange County, Florida.
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was a licensed teacher, having taught in the Orange County School System for 21 years and at Conway Middle School for over 19 years. Respondent's classroom evaluations over the years were satisfactory and higher. Respondent was a school representative for the teachers' association for approximately 16 years. Respondent is a large man, 6 feet, 3 inches tall and weighs 300 pounds. On January 12, 1989, Respondent was teaching his regular sixth-period American History class. The bell had rung, signaling the beginning of the class period, but some students were still coming into the classroom. The Respondent was preparing to show the class a filmstrip. Peyton Dickson, a student in the class, walked from his seat in the rear of the classroom to the light switch at the front of the classroom and turned the light switch on and off several times. Respondent told him to stop and to sit down. He remained standing and "talked back" to Respondent. Dickson's conduct angered the Respondent who then walked to where Dickson was standing, grabbed him by the arms and shoved him up against the wall. Respondent called Dickson a "punk." Dickson then angrily returned to his seat. Shortly thereafter, during the same class period, Todd Ray, another student in the class, walked over to use the pencil sharpener. On the way back to his seat, he stopped to help another student with a bookcover. The Respondent grabbed Ray, walked him a short distance back to the student's desk and pushed him down into his seat. The class continued without further interruption. The Respondent did not contact the school office concerning the incidents at the time that they occurred. After class was over, several students, including Peyton Dickson and Todd Ray, approached the school principal, Beth Provancha, in the hall and told her about the actions of the Respondent. Later that same day, the principal, through Mr. Nelms, directed the Respondent to prepare a written account of what had occurred in the classroom. The Respondent submitted his written version of the facts the next day, January 13, 1989. (School Board Exhibit 14). On January 29, 1989, the Respondent received a letter relieving him of duty effective January 30, 1989, because of "serious" allegations of misconduct. In the case of a student who disrupts a classroom, School Board policy directs that a student should be verbally directed by the teacher to cease disruptions. If that does not resolve the situation, the office should be "buzzed" and an administrative person summoned to remove the disruptive student from the classroom. It is not permissible for a teacher to physically abuse a student except in the case of an emergency, and no emergency existed in Respondent's classroom on January 12, 1989. Respondent had been directed by the principal, personally, as well as in the Faculty Handbook, not to physically touch students, except for friendly gestures or in emergencies. At the time of the January 1989 incidents, the Respondent knew he had been directed not to "touch" students. In spite of this knowledge, the Respondent deliberately grabbed and shoved or "touched" the two students who had been disruptive in class.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Orange County find Respondent guilty of misconduct in office, and not guilty of gross insubordination. It is FURTHER RECOMMENDED that Respondent be suspended, without pay, from the date of the incident January 12, 1989, until the end of the School Year 1988-89; and the Respondent receive counseling in stress management prior to returning to the classroom. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted: Paragraphs 1,2,3,4 (in part), 5,6,7,8,9,10,11,12,13,14 (in part). Rejected: Paragraph 13 and a portion of 14 - not relevant. Respondent's Proposed Findings of Fact: In view of the fact that Respondent's proposals are not numbered, they will be referred to by page and paragraph number as they appear in the proposed finding starting on page 3 thereof. Accepted in substance: second full paragraph on page 3 Rejected as argument: first full paragraph on page 3 third full paragraph on page 5 second full paragraph on page 6 Rejected as not supported by the evidence: third full paragraph on page 3 (continuing on page 4) first full paragraph on page 4 (except the phrase: ... "and was aware of the previous reprimands at the time the Respondent sought to control the two students' actions.) second full paragraph on page 5 Rejected as a conclusion of law which is ruled on in the Preliminary Statement or Conclusions of Law section of this Recommended Order: second full paragraph on page 4 first full paragraph on page 5 fourth full paragraph on page 5 first full paragraph on page 6 fifth full paragraph on page 5 (concluding on page 6) APPENDIX The following constitute rulings on the findings of fact proposed by the parties. Petitioner's Findings of Fact Adopted in paragraph 1. Adopted in paragraphs 10 and 12. Adopted in part in paragraph 9, although the identification of the Respondent at the party is discredited as improbable. Rejected as unsubstantiated by the weight of evidence. Even if the smell had been marijuana smoke, it was not established that the odor existed prior to Respondent's departure the evening of the 18th, or that he could identify the odor as marijuana. Rejected as contrary to the evidence. Adopted in paragraph 18. Adopted in substance in paragraph 15. Rejected as contrary to the weight of evidence. & J. Rejected. The testimony of these witnesses was essentially credible. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. Rejected as immaterial. The conduct was not proven. Respondent's Findings of Fact Respondent's 18 numbered Findings of Fact include multiple sub- parts containing findings mixed with argument and summary of evidence. The findings of fact are generally adopted and are incorporated herein. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire William E. Curphey, Esquire Parker, Johnson, Owen, McGuire, Michaud, Lang and Kruppenbacher, P.A. Post Office Box 640 Orlando, Florida Michael Barber, Esquire Post Office Box 1928 Kissimmee, Florida James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 N. Tampa Avenue Orlando, FL 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, FL 32399-0400
The Issue Does the Department of Corrections' Sexual Harassment Policy, as contained in the Pamphlet "Sexual Harassment, Your Rights and Responsibilities", in a one-page document entitled "Department of Corrections Sexual Harassment Policy", and Chapter 7 of the Department's Personnel Procedures Manual, constitute umpromulgated rules, pursuant to Section 120.535 F.S.? Are existing Department of Corrections Rules 33-4.001(4)(a), 33-4.002(4), and 33-4.003(22) and (24), F.A.C. invalid exercises of delegated legislative authority due to vagueness, pursuant to Section 120.56 F.S.?
Findings Of Fact At all times material, Petitioner has been a career-service employee working as a Parole Officer I for DOC. He has earned a master's degree in criminology. At all times material, DOC has had in effect a one-page document entitled "Department of Corrections Sexual Harassment Policy" (P-5), a Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities" (P-3), and a Personnel Procedures Manual. Chapter 7 of the Personnel Procedures Manual is entitled "Sexual Harassment Complaints" (P-6). DOC has not adopted these documents as rules, and Petitioner here challenges them as unpromulgated rules. On February 22, 1996, Petitioner received written notice that he would be suspended without pay for ten days as a result of his violation of DOC Rules 33-4.001(4)(a), 33-4.002(4) and 33- 4.003(23)(25), F.A.C., (since renumbered) and the DOC's Policy on Sexual Harassment. The letter did not rely on Chapter 7 of the agency's Personnel Procedures Manual or its Pamphlet entitled "Sexual Harassment, Your Rights and Responsibilities". Petitioner appealed this action to PERC, which subsequently entered a recommended order upholding DOC's disciplinary action. Language from PERC's recommended order, which is pertinent to this instant rule challenge is: Florida Administrative Code Rule 33-4.001(4)(a) states, in pertinent part, that 'No . . . employee shall knowingly . . . commit any act or engage in any conduct which would violate any state statute, rule, directive or policy statement.' Florida Administrative Code Rule 33-4.002(4) states, in pertinent part, that 'Each employee . . . shall perform his duties fairly and impartially and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public.' Florida Administrative Code Rule 33-4,.003(23) states that a first offense of conduct unbecoming a public employee is punishable by a written reprimand, up to a thirty day suspension or dismissal. Florida Administrative Code Rule 33-4.003(25) states that a first offense of willful violation of rules, regulations, directives or policy statements is punishable by a written reprimand, up to a thirty day suspension or dismissal. The DOC pamphlet entitled 'Florida Department of Corrections Sexual Harassment: Your Rights and Responsibilities,' provides, in pertinent part, as follows: Sexual Harassment requires two elements: The alleged conduct must be of a sexual nature, must be unwelcome and unwanted. Sexual harassment may be any of, but not limited to, the following: * * * continued suggestions regarding invi- tations to social events outside the work place, after being told such suggestions are unwelcome; * * * prolonged staring or leering to [sic] a person; * * * 32. State of Florida, Department of Corrections, Personnel Procedures Manual, Chapter 7, Sexual Harassment, provides, in pertinent part, as follows: * * * O. Sexual Harassment - Sexual Harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature from or involving an employee's supervisors, peers, subordinates or any other persons in contact with an employee or applicant during the course of the conduct of the employee's or applicant's business when: Submission to such conduct is either explicitly or implicitly a term or condition of employment; or Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or Such conduct has the purpose or effect of interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. 33. The DOC Sexual Harassment Policy provides, in pertinent part, as follows: Sexual harassment may result from unwelcome sexual advances or a hostile environment created by conduct offensive to the victim such as suggestive or lewd comments, dirty jokes, offensive pictures or physical touching. Accordingly, all employees are being placed on notice that any employee found guilty of having engaged in sexual harassment will be severely disciplined, up to and including dismissal. * * * The charge of conduct unbecoming a public employee is a general charge that is subsumed if the Agency has a more specific charge that fully describes the alleged misconduct. Ford v. Department of Health and Rehabilitative Services, 9 FCSR Para. 148 (1993); Mathis v. Department of Corrections, 6 FCSR Para. 122 (1991). In this case, I conclude that the charge of unbecoming conduct is subsumed within the charge of sexual harassment and should be dismissed. PERC's recommended order also applied the foregoing provisions. At the date of formal hearing in the instant rule challenge, PERC had issued no final order. Before this instant Division of Administrative Hearings final order could be entered, PERC had extended the time for the parties to file exceptions to its hearing officer's recommended order, and ultimately, on August 13, 1996, PERC adopted its hearing officer's recommended order, thereby rendering Petitioner subject to future disciplinary action at the second occurrence level under Rule 33-4.003, F.A.C. The final order of PERC is now under appeal by Petitioner. These facts are officially recognized, sua sponte. Petitioner received copies of the Pamphlet, the Sexual Harassment Policy, and a copy of Chapter 33-4, F.A.C., on July 16, 1993, when he began employment with the agency. He did not receive a copy of Chapter 7 of the Personnel Manual and was unaware of it until his PERC proceeding. DOC imposes disciplinary action against its employees for conduct which constitutes sexual harassment. Petitioner received periodic training in agency seminars on the agency's Sexual Harassment Policy, including annual film presentations. He did not receive similar training regarding "conduct unbecoming a public employee", which is a term utilized in Section 110.227(1), F.S., and for which an employee may be disciplined. Section 110.227(1), F.S., also permits discipline of employees for "willful violation of the provisions of law or agency rules". Rule 33-4.001(4)(a), F.A.C., provides, in pertinent part: Responsibility for Conduct of Employees, Inmates and Others. No Administrator, Superintendent, Officer-In-Charge, Supervisor, or other employee shall knowingly permit any subordinate, inmate or other person to, nor shall he, commit any act or engage in any conduct which would violate any statute, rule, directive or policy statement . . . . Petitioner claims that Rule 33-4.001(4)(a), F.A.C., is vague as applied to him because he is not an administrator, superintendent, officer-in-charge, or a supervisor. According to Petitioner, this rule in only applicable to those who supervise subordinates. Rule 33-4.002(4), F.A.C., provides in pertinent part: (4) Each employee shall keep himself physically fit, mentally alert, personally neat and clean and shall perform his duties fairly and impartially, and otherwise conduct himself both on-duty and off-duty so as to command the respect of fellow employees, persons on parole, probation or otherwise under his supervision, inmates and the general public . . . . Rule 33-4.003, F.A.C., is entitled "Range of Disciplinary Actions" and lists a number of violations. Item (22) is "Conduct Unbecoming a Public Employee"; Item (24) is "Willful Violation of Rules, Regulations, Directives, or Policy Statements". The range of disciplinary penalties is increased at the second occurrence level under the rule. The agency Policy Statement, Pamphlet and Chapter 7 of the agency Personnel Manual state that sexual harassment is conduct unbecoming a public employee and contain definitions of sexual harassment, including hostile work place sexual harassment. The first sentence of the Pamphlet states that sexual harassment is a form of sex discrimination under Title VII of the 1964 Civil Rights Act and is conduct unbecoming a public employee, as provided in Sections 110.105, 110.227 and 110.233, F.S., and Chapter 33-4, F.A.C. (Rules of the Department). The first page of the Pamphlet states EEOC guidelines defining sexual harassment, as recognized by the agency: Unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when: Submission to such conduct is made either explicitly or implicitly a term or condition of a person's employment, or Submission to, or rejection of, such conduct by [sic] decisions affecting an individual, or Such conduct has the purpose or effect of substantially interfering with a person's work [sic] hostile or offensive working environment. The Pamphlet goes on to advise that sexual harassment requires two elements: conduct of a sexual nature/that is unwelcome and unwanted. It lists examples of harassing behavior, advises of the need to report such behavior, and explains the agency's internal complaint procedure and the procedure's protections against retaliation. It gives references for legal remedies outside the agency. Chapter 7 of the Personnel Procedures Manual states basically the same information as the Pamphlet, lists the same legal authorities and details the internal complaint procedure. It specifically provides, If there is a determination that there is cause to believe sexual harassment occurred, disciplinary action shall be taken in accordance with Chapter 33-4 Department of Corrections Rules. Chapter 7 was first effective on January 25, 1989 and last amended on March 5, 1993. It derives its authority from Title VII of the 1964 Civil Rights Act, Sections 110.105, 110.227, and 110.233, F.S., and Chapter 33-4, F.A.C. Both the agency Pamphlet and Chapter 7 of the Manual state that sexual harassment is conduct unbecoming an employee. Petitioner's position with regard to whether or not the Pamphlet and Chapter 7 of the Manual constitute unpromulgated rules appears to center on his belief that without them, employees are not on notice as to exactly what behavior constitutes sexual harassment, that they contain a subtext of what types of sexual harassment, i.e. hostile work environment, will be disciplined, or that they alone reveal that sexual harassment constitutes "conduct unbecoming". Petitioner testified that he understood blatant sexual harassment, such as unconsented physical contact, to be conduct unbecoming a public employee, but he did not have a clear understanding about the "gray areas", such as complimenting co- workers, socializing outside work, or what acts constituted hostile work place sexual harassment. However, Petitioner testified that he was on notice that the agency had an Anti-Sexual Harassment Policy and that at all times material, he knew that if he committed sexual harassment, he would be subject to discipline, up to and including termination. Petitioner admitted that if any employee engaged in actual sexual harassment against another employee, the offending employee would not command the respect of fellow employees, as described in Rule 33-4.002(4), F.A.C. He also was on notice through Rule 33-4.003, F.A.C., that he could be disciplined for "conduct unbecoming" or "willful violations of law or policy statements". He is charged at law with knowledge of Section 110.227(1) requiring discipline for "conduct unbecoming" or "willful violation" and Chapter 760 F.S., which implements Title VII of the 1964 Civil Rights Act. The agency routinely disciplines its employees for sexual harassment and has a long history of application of its Anti-Sexual Harassment Policy. Petitioner did not submit any evidence as to how Chapter 7 of the agency's Personnel Procedures Manual, the Pamphlet, or the one- page Policy Statement had any affect on him, beyond the discipline described, supra. Furthermore, there was no evidence presented to show that the agency's Sexual Harassment Policy, the Pamphlet, or Chapter 7 of the Personnel Procedures Manual have any affect on any person not employed by Respondent. There was no evidence that any of the provisions in these documents were self-executing.
The Issue Whether Respondent’s alleged conduct is a violation of Pinellas County School Board Policy 8.25 and/or Section 231.36, Florida Statutes, and is just cause for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Respondent, Reginald K. Reese, is a teacher certified by the State of Florida, holding a professional service contract with Petitioner, the Pinellas County School Board (School Board). Respondent was employed as a substitute teacher by the School Board in August 1988. Respondent was hired as a full- time teacher in the Pinellas County School System in August 1989, and has been a teacher in the district since that time. At all times relevant to this proceeding, he was employed as a teacher at Riviera Middle School. Throughout his tenure with the School Board, Respondent's teaching career has been exemplary and he has consistently received good evaluations. It is undisputed that Respondent is held in high regard and considered an excellent teacher by many parents of children he has taught and by his colleagues and administrators with whom he has worked. Respondent is viewed by his former principal and current assistant principals as an excellent educator. His co-workers view him as an excellent teacher, the epitome of quality, a wonderful teacher, top-notch, one of the best, innovative, creative, compassionate with children, an inspiration to students, and one of the teachers students come back to the school to see. Two parents whose children were taught by Respondent several years ago believe that Respondent's work and effort as a teacher had turned their children around and made them responsible, productive adult members of society. Prior to the recommended disciplinary action which is the subject of this proceeding, Respondent has never been the subject of disciplinary action by the School Board or any of its administrators. On Wednesday, November 10, 1999, at about 1:00 p.m., Respondent parked his vehicle at the entrance of the south trail near the mangrove area in the vicinity of 4th Street and 115th Avenue in St. Petersburg, Florida. Respondent then exited his vehicle and entered the south trail of the mangrove area. It is undisputed that while in the mangrove area, Respondent engaged in a sexual activity, specifically oral sex and masturbation, with two other adults. The contact between Respondent and the other individuals was consensual and involved adults who were strangers to each other. This sexual activity was observed by Corporal Ward of the Pinellas County Sheriff’s Office. The mangrove area in which the incident occurred was not clearly visible from the street. However, the area is considered a public place and is next to a busy four-lane road. Moreover, within that vicinity, people engage in recreational activities, including sunbathing, fishing, and boating. After the sexual activity had concluded, Respondent was arrested at the scene of the incident described in paragraph 7 by an officer with the Pinellas County Sheriff’s Office who had observed the acts. As a result of the incident, Respondent was charged with committing an unnatural and lascivious act and exposure of sexual organs. Respondent pled nolo contendere to exposure of sexual organs and an Order Withholding Adjudication of Guilt was entered on December 30, 1999. Further, an Order Withholding Adjudication of Guilt on a Plea of Nolo Contendere to the charge of unnatural and lascivious act was entered on December 30, 1999. An Order to Seal Criminal History Record was entered on January 4, 2001. On the advice of counsel, Respondent did not report his arrest, the charges filed against him, or the orders entered resolving the criminal matters to School Board officials at or near the time they occurred. Respondent reported his arrest in a letter dated June 10, 2001, to the School Board’s Office of Professional Standards, when he applied for renewal of his teaching certificate. Upon receipt of the June 10, 2001, notification of Respondent’s arrest, the School Board investigated the matter. Following the investigation, on July 18, 2001, Respondent was notified in a certified letter that Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, would be recommending to the School Board that Respondent be dismissed from employment. The basis of the recommendation of dismissal is that the conduct engaged in by Respondent on November 10, 1999, violated Pinellas County School Board Policy 8.25 and the Code of Ethics and the Principles of Conduct of the Education Profession in Florida. It was alleged that these violations constitute just cause for Respondent's dismissal pursuant to Section 231.36, Florida Statutes. Dr. Hinesley's recommendation of dismissal is based on several factors. First, Dr. Hinesley believes that the conduct engaged in by Respondent on November 10, 1999, was immoral in that it took place in a public area. Second, Dr. Hinesley believes that dismissal of Respondent is warranted because Respondent's actions were inappropriate and embarrassed the school system and the school. Finally, Dr. Hinesley believes that the conduct engaged in by Respondent was inappropriate and impaired his effectiveness as a teacher in the Pinellas County School District. Information regarding the subject incident has not been widely disseminated because the record was sealed by court- order. However, all of the witnesses testifying in support of Respondent were advised of the details of the incident. In light of this knowledge, teachers who have worked with Respondent, a former administrator who supervised Respondent, former students of Respondent, parents of Respondent's former students, and community members supported Respondent. While admitting that Respondent made a mistake or had a lapse in judgment, they believe that his exemplary teaching record and dedication to students and to the profession will allow him to overcome the challenges that may arise if and when the incident becomes public. Many of them also believe that his service to the Pinellas County School District community will not be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 2nd day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 January, 2002. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue This is a case in which the Petitioner seeks to take disciplinary action against an employee on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The employee is charged with violations of School Board Rule 6GX31-2.40 and Rule 6B-1.006(5)(d), Florida Administrative Code, on the basis of several specific events alleged in the Notice of Specific Charges.
Findings Of Fact Background facts All of the charges in this case involve matters alleged to have taken place during the 1995-96 school year. During that school year the Respondent was a teacher at Oslo Middle School. Oslo Middle School was a new school. Team teaching was in effect at that school. A few weeks after the school year began, one of the team leaders, Mr. Nat Powell, was appointed to a position as a dean at that school. Mr. Powell’s appointment to dean left a vacancy in a team leader position. The Respondent and several other people applied for the team leader position. The Respondent was the successful applicant and was appointed to be a team leader shortly after Mr. Powell was appointed to the position of dean. The Respondent was appointed to be a team leader largely because he had more teaching experience than most of the other teachers in that pod. Also, Respondent’s appointment to that position was recommended by Mr. Powell. The team the Respondent was appointed to lead was a team of sixth grade teachers known as the “Magic Team.” The full time members of that team in addition to the Respondent were Ms. Lois Cramer, Ms. Martha DeVries, Ms. Connie Novak, and Ms. Jacqueline (“Jackie”) Parker. These four team members all liked each other, all got along well with each other, and all worked well together. None of the four team members mentioned immediately above worked well with the Respondent. Each of these four team members often found it unpleasant to deal with the Respondent and tended to minimize the amount of contact they had with him. This attitude on the part of the four team members appears to be due primarily to a combination of two things. The first was a large difference in their perception of the appropriate role of a team leader. The four team members were of the view that the team leader was primarily a facilitator or coordinator; a team member who had extra responsibilities on behalf of the team. Stated otherwise, the four team members viewed the team as being somewhat of a democratic institution in which everyone, including the team leader, had a voice, and in which the team leader also had additional responsibilities with respect to the implementation of the team consensus. The four team members did not view the team leader as being their boss or as having any supervisory authority over them. The Respondent had a very different view of his role as team leader. He was of the view that he was, in essence, the “boss” of the team, that he was in a supervisory role over the other members of the team, and that he had a greater voice or role than the others in determining the direction of the team’s efforts. This difference in perception regarding the appropriate role of the team leader resulted in a great deal of conflict between the Respondent and the other team members. The other major source of conflict between the Respondent and the other team members is that in his interactions with other people the Respondent frequently engages in conduct which is uncomfortable to others and is often interpreted by them as intimidating or threatening. This conduct includes standing too close to people, unnecessary touching of people, and yelling. In his role as team leader, the Respondent was very interested in being successful and effective. To those ends he would frequently attempt to act like a boss and issue orders to the other team members. On occasions when the Respondent was dissatisfied with the response to his demands he would often get too close and too intense as he communicated his dissatisfaction and cause the other team members to feel intimidated or threatened. As their feelings of being intimidated or threatened increased, the Respondent’s effectiveness as team leader decreased. Before long, the Respondent was a very ineffective leader of a team that was not working very well. With these background facts in mind, attention is now directed to the facts regarding the specific allegations in the Notice of Specific charges. The December 20th incident with Ms. Parker (Paragraph 2A of the Notice of Specific Charges) December 20, 1995, was Ms. Parker’s last day of teaching at Oslo Middle School. She had previously submitted her resignation because she and her husband were moving to another state. During fourth period that day the students in Ms. Parker’s class were having a party. After the bell rang at the end of fourth period, one of the students asked Ms. Parker for a pass to go to the school clinic. Ms. Parker told the student that she couldn’t write her a pass right then because she had to monitor activity in the hall during the change from fourth to fifth periods, but that the student should ask the Respondent for a pass as soon as fifth period started. (During that semester, students went from Ms. Parker’s class to the Respondent’s class.) Shortly after fifth period began, the Respondent and the student who had asked to go to the clinic appeared at the door to Ms. Parker’s classroom. Ms. Parker opened the door and the Respondent spoke to her in a confrontational manner demanding to know why Ms. Parker was always sending him students who needed to go to the clinic and demanding to know why Ms. Parker could not send them to the clinic while they were in her class. The Respondent was using an accusatory tone of voice; accusing Ms. Parker of not responding appropriately to student requests for passes. Ms. Parker explained to the Respondent that the student had not asked for a pass until after the bell rang. The Respondent then began to brow beat the student as to why the student had not asked for the pass sooner if she was truly in pain. The student was unable to formulate a satisfactory answer and eventually the Respondent allowed the student, who had been standing there all along, to go to the clinic. As the student departed, the Respondent turned to Ms. Parker with his hands on his hips and accused Ms. Parker of intimidating the student. Ms. Parker was very upset by this confrontational and accusational conduct of the Respondent. She obviously felt intimidated and threatened, as reflected by her subsequent actions. She told the Respondent that she would never intimidate anyone and then shook a finger in the Respondent’s face and told him he had no right to try to intimidate her and that she was going straight to the Principal to report the matter. Ms. Parker turned to return to her classroom and the Respondent, in an apparent effort to prolong the confrontation, told Ms. Parker he needed to talk to her. Ms. Parker was so upset by the way she had been treated by the Respondent that she told him if he came into her classroom she would call the office and have him escorted out. The Respondent left. As soon as she could arrange for someone else to watch her class, Ms. Parker went to the Principal’s office where she broke down and cried as she described the manner in which the Respondent had treated her. Ms. Parker’s reaction to this incident must be considered in the context of prior unpleasant experiences she had had with the Respondent and that she had seen others have with the Respondent, some of which are addressed in the paragraphs which follow.1 The yelling incident with Ms. Cramer(Paragraph 2B of the Notice of Specific Charges During the fall semester of 1995, near the beginning of the second nine-week grading period, there was an occasion when most of the students taught by the Respondent’s team were in the gym having a celebration and playing games. The students were being supervised by the Respondent and three of the other team members.2 During those activities the Respondent had to leave the gym to attend to various matters and was absent from the gym longer than he had expected to be. While the Respondent was absent from the gym, the three team members who were supervising the several hundred students in the gym became concerned about their ability to continue to maintain control of the students and wanted to have the Respondent there to assist them. They decided someone should page the Respondent. Ms. Cramer went to the office and paged the Respondent at about the same time he had started to return to the gym. As Ms. Cramer was returning to the gym she encountered the Respondent just outside the gym. She asked him where he had been and told him they needed him in the gym. The Respondent, who was obviously very angry, approached Ms. Cramer, got very close to her,3 and began to yell at her, telling her that she was not his boss and that it was not part of her job to worry about where he was. Ms. Cramer said something to the effect that both of them needed to be back in the gym to assist the other two team members and started into the gym. Once inside the gym, Ms. Cramer went and stood on the gym floor with a group of students. The Respondent entered the gym through a different entrance and then walked over to where Ms. Cramer was standing with a group of students. Again using a loud angry voice, and again standing very close, the Respondent repeated to Ms. Cramer that she should not have paged him. Ms. Cramer, seeking to avoid a confrontation in front of the students, answered the Respondent by saying that this was not the time discuss the matter and that she did not want to discuss it in front of the students; whereupon she turned and began to walk away from the Respondent. The Respondent followed her as closely as he could and continued to yell the same message at her. Again Ms. Cramer told the Respondent that this was not the time to discuss the matter and again she walked away from him. The Respondent continued to follow her and continued to yell until Ms. Cramer stopped near where Ms. Parker was standing. The yelling incident with Ms. Novak(Paragraph 2C of the Notice of Specific Charges During the fall semester of 1995, at approximately the middle of the first nine-week grading period, all of the teachers sent out progress reports. The Respondent was annoyed with Ms. Novak because she had filled out some of her progress reports in a manner that was inconsistent with a memorandum describing how the reports should be filled out. A week or two after the middle of the first nine-week grading period, the Respondent confronted Ms. Novak one afternoon shortly after school was finished for the day. Although school was over for the day and the students were free to leave, there were still a number of students on the school premises. At the time the Respondent approached Ms. Novak, the latter was in the process of watching some students who had been arguing in the halls to make sure they did not get together and start arguing again. As the Respondent approached Ms. Novak he held a paper towards her with his hand and told her he had the information that showed how she should have marked the progress reports. Once Ms. Novak figured out what the Respondent wanted to talk to her about she said something to the effect of, “Fine, I’ve got a confrontation going on right now; we’ll take care of that in a minute.” The Respondent insisted on talking about it right then and there. Ms. Novak reiterated that she would talk about it after she finished dealing with the potential student problem. The Respondent continued to insist on talking about it right then. The Respondent began to move closer and closer to Ms. Novak and his voice began to escalate as he began challenging Ms. Novak to admit she was wrong. Ms. Novak became nervous and increased her volume and shouted at the Respondent that he should get out of her face. Ms. Novak began to try to make her way back to her classroom and the Respondent stayed right with her walking close to her and yelling at her that she should admit she was wrong and accusing her of being unable to admit she was wrong. Ms. Novak replied by yelling at the Respondent that he should get out of her face and should leave her alone. Despite Ms. Novak’s yelling for him to leave her alone, the Respondent continued to hound her and continued to demand that she admit she was wrong and to accuse her of being unable to admit she was wrong. This unfortunate situation continued until Ms. Novak and the Respondent were near the door to Ms. Novak’s classroom. Ms. Novak told the Respondent he should just drop the matter and she then quickly entered her classroom and locked the door to prevent the Respondent from coming in. Several students witnessed this unfortunate incident. As a result of the confrontation described above, Ms. Novak was no longer able to work effectively with the Respondent, because she could not work with someone who was so confrontational. From that point on, Ms. Novak avoided the Respondent as much as possible. The “melons” comment to Ms. Tolliver(Paragraph 3A of the Notice of Specific Charges Early in the fall semester of 1995, the Respondent had occasion to meet Ms. Susan Tolliver, who was one of the other team leaders at Oslo Middle School. On that day Ms. Tolliver was wearing a white shirt with appliquéd watermelons all over it. During the course of a brief conversation, the Respondent said to Ms. Tolliver, “How’s your melons today?” The Respondent’s comment did not make Ms. Tolliver feel uncomfortable, but she did think it was a strange remark from someone she had never met before. Ms. Tolliver was not offended by the Respondent’s remark; she simply thought it was a peculiar thing for someone to say under the circumstances.4 The “innuendo” incident with Ms. Parker (Paragraph 3B of the Notice of Specific Charges During the early part of the fall semester of 1995 on one occasion the Respondent had a conversation with Ms. Jacqueline Parker in the cafeteria during which he mentioned having seen a man who had said he knew Ms. Parker and had asked the Respondent to say “hi” to Ms. Parker on his behalf the next time the Respondent saw Ms. Parker. In the context of telling her about that matter, the Respondent included some joking remarks to the effect that the man had said something to the effect that Ms. Parker would never forget him. Some other teachers overheard the Respondent’s remarks and began to tease Ms. Parker, suggesting that the man the Respondent was talking about must have a crush on her. A few minutes later the Respondent said to Ms. Parker, “You know I was only kidding, don’t you?” Although Ms. Parker was initially inclined to dismiss the Respondent’s comments as an unintentional awkwardness, she apparently came to believe that he was intentionally trying to embarrass her and she took pains to explain to some of the other teachers that she did not have any type of relationship with the man the Respondent had been talking about. The incidents with Ms. DeVries(Paragraph 3C of the Notice of Specific Charges During the fall semester of 1995, the Respondent had three conversations with Ms. DeVries that included comments by the Respondent that caused Ms. DeVries to feel sort of uncomfortable. The comments attributed to the Respondent on these occasions are arguably lacking in sensitivity, but in the context in which they were made they appear to be nothing more than poor manners or poor taste.5 While the comments may well be regarded as unnecessary or inappropriate, they do not rise to the level of harassment, sexual or otherwise. During the fall semester of 1995, on two occasions the Respondent touched Ms. DeVries in a manner which bothered her. On both occasions Ms. DeVries was standing; once in a classroom and once in a hall. On both occasions the Respondent approached Ms. DeVries from behind and placed both of his hands on her shoulders. On both occasions he then bent over, placed his face very close to Ms. DeVries’ ear and spoke to her with his face so close to hers that she could feel his breath on her skin. Ms. DeVries felt intimidated and offended by being touched in such a manner. On both occasions she promptly jerked away from the Respondent’s touch and turned around to face him. The pizza incident with Ms. Novak(Paragraph 3D of the Notice of Specific Charges On one occasion during the fall semester of 1995, during the course of a break between parent/teacher conferences, some of the members of the team were eating pizza in a classroom. Ms. Novak dropped a piece of pizza and it fell to the floor. Upon observing this, the Respondent said, “I’m surprised you didn’t catch that on your shelf.” There is no evidence as to what effect that comment had on Ms. Novak.6
Recommendation On the basis of all of the foregoing it is RECOMMENDED that the Indian River School Board enter a Final Order in this case to the following effect: Dismissing the charges against the Respondent that are described in Paragraphs 3A, 3B, and 3D of the Notice of Specific Charges; Concluding that the Respondent is guilty of having violated Rule 6B-1.006(5)(d), Florida Administrative Code, as charged in Paragraphs 2A, 2B, 2C, and 3C of the Notice of Specific Charges; Concluding that the Respondent is not guilty of having violated School Board Rule 6GX31-2.40; and Imposing a penalty consisting of a ten-day suspension without pay. It is also recommended that the Respondent be required to obtain further education, training, or counseling on the subject of interpersonal relationships. DONE AND ENTERED this 13th day of June, 1997, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
Findings Of Fact Phillip Ortwein was employed by USF December 1, 1966 on a 7-month contract expiring June 30, 1967. On his application for employment (Exhibit 16) he indicated that he held a Masters Degree in Physical Education from Indiana University in 1948 and that he had done 1 1/2 years work on a Doctorate Degree which he expected to complete in 1968. He was employed in the Physical Education Department and assigned duties in the functional program as well as in the activities program instructing in tennis. His contract was renewed on July 1, 1967 for the period 9/1/67 to 6/30/68 on a 12-month appointment (Exhibit 4). His contract was again renewed July 1, 1968 for the 12-month period ending 6/30/69 (Exhibit 5). By memo dated March 3, 1969 Petitioner was notified that his contract would not be renewed effective June 30, 1970. Upon receipt of this notice Petitioner went to the Director of the Physical Education Division who had authored the notice to see if there was any hope his contract would be renewed. The Director, Dr. Bowers, advised Petitioner that there was always hope but that the notice remained effective. He was advised that he should upgrade his knowledge of changes in the academic physical education field. Petitioner was also aware that his immediate superior, Professor Prather, was not satisfied with his performance in the functional program of the Physical Educa-tional Division. Then or shortly thereafter Petitioner requested to be relieved of his duties in the functional program to devote more time to upgrading his knowledge and this was granted. Some six months later Petitioner first spent time in the library for this purpose. On January 27, 1969 the Physical Education Tenure Committee was requested by Bowers to submit a recommendation regarding the tenure status of Ortwein. At this time Ortwein was not eligible for tenure as he had not been employed by USF for the three years required. However, this was the only professor evaluation committee extant and Bowers, in order to get faculty input on whether or not to recommend renewal of Ortwein's contract, asked for the evaluation. On February 26, 1969, Bowers was advised the committee had voted 3 for granting tenure and 3 for deferring tenure. By letter dated December 22, 1969 Dean Edwin P. Martin, following a discussion with Ortwein, advised Petitioner that, due to an apparent misunderstanding by Ortwein regarding Bowers' notice he, Martin, was rescinding the termination notice of March 3, 1969, and that his employment would be terminated December 31, 1970. Following further discussion with Bowers Petitioner requested the full faculty in the Physical Education Division be polled to evaluate him. Results of this poll were 3 recommending granting tenure, 9 opposed, and 3 undecided. Due to administrative error Appointment-Reappointment Notice dated September 1, 1970 (Exhibit 7) renewing Petitioner's contract from" September 18, 1971 to June 13, 1971 was forwarded to and accepted by Petitioner. By letter to Ortwein dated October 9, 1970 (Exhibit 11) Dean Martin acknowledged that the contract (Exhibit 7) served to extend Petitioner's termination dated to June 13, 1971. Exhibit 12, letter of December 14, 1970, incorrectly dated December 14, 1971, Harris Dean, Acting President of USF, notified Petitioner that his employment would be terminated at the end of quarter 1, 1971, more than one year from the date of the letter. Exhibit 8, Notice of Appointment - Reappointment dated December 14, 1970 extended Ortwein's appointment to December 16, 1971. The parties stipulated that evidence subsequent to this latter termination date was not relevant to these proceedings. The pleadings indicate Ortwein was finally terminated in June, 1975. The letter of termination (or nonreappointment) dated December 14, 1970 was the first notice received by Respondent signed by the president of USF and this notice provided twelve months advance notice to Ortwein that his appointment would not be renewed. By letter of December 10, 1970 (Exhibit 13) Bowers presented to Acting President Dean four reasons for the recommendation not to reappoint Ortwein. These were: (1) Lack of performance in the area of functional physical education; (2) Contribution limited to area of tennis; (3) No contribution to the department outside the area of tennis; and (4) When the entire faculty of the Physical Education Division were polled there were 3 votes for and 9 against his continuing employment with 3 abstentions. Petitioner's performance in the Physical Education Division was unsatisfactory. He exhibited difficulty handling large groups and communicating instructions to them. His contributions at staff meetings were non-existent or negligible. His relations with students were considered brusk and too militaristic by his superiors. Neither Petitioner nor any other witness testified to any personal animosities between them and Petitioners; or of any conflict with any religious, political or social philosophies between them and Petitioner. In fact all witnesses testified no such personal difficulties existed or were apparent.
Conclusions It is hereby ordered and adjudged that Petitioner's complaint be and the same is hereby dismissed. Even if the complaint were to stand, the record supports, with competent substantial evidence, the conclusion that the Petitioner should not be re-employed by the University. Therefore, that decision is affirmed and adopted as the final action of this agency. Done and ordered at Tampa, Florida, on September 14, 1977. Wm. REECE SMITH JR. President
The Issue The issues for determination are whether Petitioner, Kenneth Davis, made sexually harassing statements and made body contact with a female counselor so as to constitute sexual harassment and a hostile work environment, in violation of Pinellas County Sheriff Office Civil Service Act and the rules and regulations of the Pinellas County Sheriff's Office, and, if so, what is the appropriate penalty.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, Florida Statutes, and the entire record compiled herein, the following relevant and material facts are found: Respondent, Sheriff Everett S. Rice (Sheriff), is a constitutional officer of the State of Florida, responsible for providing law enforcement and correctional services within the geographic boundaries of Pinellas County, Florida. Petitioner, Detention Deputy Kenneth Davis (Deputy Davis), is a 23-year employee with the Pinellas County Sheriff's Office, having spent his entire career as a detention officer. As a result of years of training and experience, Deputy Davis is intimately familiar with the Sheriff's policy regarding sexual harassment, detention policies, operations, procedures, and the priority of security applicable to detention deputies. The evidence demonstrates that in the collective opinions of those detention deputies who worked longest with Deputy Davis, all agreed that his personality was that of one who "[was] loud and obnoxious--to pretty much everybody," "play[ed] around a lot," "never insulted anybody," and "[didn't] mean any harm." At all times pertinent to this cause, Deputy Davis held the rank of detention corporal until the Sheriff reduced his rank to Deputy and removed him from his position of detention corporal on March 10, 2003. Deputy Davis' chain-of-command consisted of Major Kirk Brunner, Detention and Correction Bureau commander; Captain Nesbitt; Lieutenant Keith George; and Sergeant Buckingham. Deputy Davis did not have authority over Lori Atwater (Ms. Atwater), the complainant in this cause. He was not in her chain-of-command nor was he one of her bosses in the sense that he could assign her tasks. At all times pertinent to this cause, Deputy Davis worked in detention barrack C, North Division. Barrack C is a two-storied structure divided into B block and C block, with each cellblock divided into an upper level and lower level. Deputy Davis had four deputies under his supervision in cellblock C. At all times pertinent to this cause, Control Deputy Salazar worked the control center at barrack C. The control deputy is stationed in a glassed enclosure with clear view of individuals desiring entrance into the waiting room of barrack C and with clear view of inmates desiring to leave the cellblock and enter the waiting room. On or about March 4, 2002, Ms. Atwater, an African- American and a long-time resident of St. Petersburg, Florida, commenced employment with the Pinellas County Sheriff's Office as an inmate-counselor. Ms. Atwater has an Associate of Science degree in Computer Technology Engineering and a Bachelor of Science degree in Management Information Systems. Her inmate- counselor duties consisted of identifying inmates who had family, legal, and personal issues requiring her intervention. The Department of Children and Family Services (DCFS) employed Ms. Atwater for ten years before she began employment with the Pinellas County Sheriff's Office. While employed with DCFS, she worked in food stamps, Medicaid, protective services, adoptions, and several community recruitment programs. DCFS also has a policy against sexual harassment. The Sheriff has adopted Pinellas County Sheriff's Office General Order 3-4, which defines and prohibits sexual harassment. Pursuant to General Order 3-4, sexual harassment is defined as: All unwelcome or unwanted advances; including sexual advances or unwanted sexual attention, whether between person(s) of the opposite or same sex. This includes, but is not limited to, leering, touching, patting, brushing against, hugging, kissing, fondling, any other similar physical contact, or quid pro quo arrangements (i.e., a situation in which an employee is forced to engage in unwelcomed sexual conduct in order to protect or advance his/her job.) Unwelcome requests or demands for favors, including sexual favors. This consists of subtle or blatant expectations, pressures, or request for any type of favor, including sexual favor, including unwelcome requests for dates, whether or not the request is accompanied by an implied or stated promise of preferential treatment or negative consequences. Inappropriate third party comments or one time comments made which do not constitute a hostile work environment, language not directed at the offended member, jokes (spoken, printed or drawn) that are not directed at the offended member or joint banter of a sexual or offensive nature in which the offended member may or may not be a party. All employees of the Sheriff, including Deputy Davis and Ms. Atwater, received instructions regarding the Sheriff's Sexual Harassment Policy. The evidence demonstrates that beginning in March of 2002 and continuing through the months of April and May 2002, Ms. Atwater noticed, without telling him to stop and without reporting her resulting complaint to her supervisor, that Lieutenant George would call her "Ms. Ashwood." At some unspecified time prior to March of 2002, Ms. Atwater concluded that the name "Ms. Ashwood" was offensive. Ms. Atwater based her conclusion on her interpretation and knowledge of the general reputation of a Ms. Ashwood (no first name given) within the African-American community of St. Petersburg. According to Ms. Atwater, Ms. Ashwood was known throughout the African- American community for engaging in sexual encounters with multiple partners. As a direct result of her superior, Lieutenant George, continuously calling her Ms. Ashwood, a name she considered to be sexually offensive, Ms. Atwater chose not to report her sexual harassment complaint against Lieutenant George through the proper protocol. The record contains no evidence that Ms. Atwater asked Lieutenant George what was his intended meaning by calling her Ms. Ashwood. The evidence demonstrates that Lieutenant George, having been involved in both the hiring of Ms. Atwater as well as involved in her performance evaluation, knew her name to be Ms. Atwater. Alleged statements made by Deputy Davis to Ms. Atwater in the cafeteria during a lunch period. The evidence demonstrated that Ms. Atwater and Deputy Davis initially enjoyed a rather cordial relationship at work during the period of March through May 2002, at least by outward appearances. Deputy Davis and Ms. Atwater both attended read- off sessions; on occasions, they walked together from the read- off sessions back to barrack A; and on two separate occasions, they were seated at the same table in the compound's buffet- styled cafeteria. They did not have contact with each other beyond what was necessary in the performance of their respective duties. They did not have contact with each other outside the workplace. On some unspecified date during lunch in the compound cafeteria, Ms. Atwater chose to ask Deputy Davis why Lieutenant George kept calling her Ms. Ashwood. According to Ms. Atwater, Deputy Davis came over to the table where she sat and she allegedly initiated the following conversation: Atwater: I really don't appreciate that, him [Lieutenant George] calling me Ms. Ashwood. Davis: He's probably P-U-S-S-Y whipped and you probably remind him of her. Atwater: He just alluded to--and used the term inside whore. Atwater: What's an inside whore? Davis: That's when you sleep with someone that makes Decisions for your career. Atwater: If I ever get promoted around here it will not be because I've slept with anybody, but based on my own merits. At the final hearing, Deputy Davis denied the allegations regarding the above statements attributed to him by Ms. Atwater. Thus, the evidence is irreconcilably in conflict as to whether Deputy Davis made those statements attributed to him with the intent of sexually harassing Ms. Atwater, and if the statements were, in fact, made, whether his answers were truthful responses to her question. The compound cafeteria has several long tables seating six to eight persons and several shorter tables seating four to six persons. It is significant that not a single witness, from among others who were seated at the same table with Ms. Atwater and Deputy Davis in the cafeteria on that unspecified day, was called to corroborate the statements allegedly made by Deputy Davis to Ms. Atwater. With knowledge of the Sheriff's sexual harassment policy coupled with her prior knowledge of DCFS's similar sexual harassment policy, and having been highly offended by Deputy Davis' conversation, it is significant that Ms. Atwater, whose counseling job included accurate record keeping, made no attempt to record this first incident with Deputy Davis resulting from repeated incidents with Lieutenant George. Additionally, Ms. Atwater chose not to follow protocol and report to her immediate supervisor her complaint of sexual harassment by a relatively new co-worker. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity, thus proving by a preponderance of the evidence that Deputy Davis made unwelcome or unwanted sexual comments or advances and/or unwelcome unwanted sexual demands, nor created a hostile work environment as Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what was said or not said by Ms. Atwater or by Deputy Davis during the alleged conversation that took place on some unspecified date in the compound cafeteria. Alleged intentional body contact by Deputy Davis with Ms. Atwater in the cafeteria buffet serving line. Ms. Atwater further testified that on another unspecified day while she was in the cafeteria buffet serving line fixing her salad, she felt "a brazen--it felt maybe like his [Deputy Davis] radio or something-it was hard--and then he went in my ear 'boo.' It made me jumpy and I made a squealing noise-because I didn't expect anything to braze in the back on my----." Continuing, Ms. Atwater testified that Lieutenant George came in the cafeteria at that time, and she asked him "why don't you tell your friend to just cut it out?" The Sheriff did not call Lieutenant George to testify. No other witness testified to corroborate Ms. Atwater's statements. Deputy Davis denied this second allegation of intentionally making body contact with Ms. Atwater and speaking in her ear. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity and that Deputy Davis engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur on that unspecified date between Deputy Davis and Ms. Atwater in the buffet serving line in the compound cafeteria. It is significant that Ms. Atwater, whose counseling job required accurate and detailed daily record keeping, made no record of Deputy Davis' second alleged sexual harassment of her person. With firsthand knowledge of the Sheriff's sexual harassment policy plus her ten-year experience with a similar sexual harassment policy during her employment with DCFS, Ms. Atwater chose again not to follow proper protocol. She chose not to properly report this second incident to her immediate supervisor. Her second decided refusal to report what she considered sexual harassment by the same co-worker is not a defense, if Deputy Davis was guilty of such conduct, and does not absolve him from liability. Having chosen for the second consecutive occasion not to report the alleged sexual harassment by Deputy Davis does present a significant impediment regarding Ms. Atwater's memory, recall, and credibility. Alleged repeated harassing comments by Deputy Davis resulting from Ms. Atwater's frightened squealing. Concluding, Ms. Atwater testified that "for months" after the undated cafeteria serving line incident, "every time" she would see Deputy Davis (minimum twice a week in barrack C) he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." According to her, these statements allegedly resulted from the cafeteria serving line incident and from a subsequent work related discussion and disagreement between Deputy Davis and Ms. Atwater regarding the form "62" (a form used by inmates requesting to see the counselor). Ms. Atwater, when confronted with what she considered a third but continuing sexual harassment by Deputy Davis, again chose not to follow protocol and report this third incident to her supervisor. It is significant that according to Ms. Atwater, she was initially and had been continuously sexually offended by Lieutenant George calling her Ms. Ashwood. When she inquired of Deputy Davis why Lieutenant George called her Ms. Ashwood, she was again sexually offended by his alleged answer to her question. She turns then to Lieutenant George, who was continually sexual harassing her and (did not ask him to stop calling her Ms. Ashwood) asks his assistance (not to file a proper complaint) but to have Deputy Davis (whose answer to her question about Lieutenant George she considered sexual harassment) to "just knock it off." Regarding her third alleged sexual harassment complaint against Deputy Davis (Ms. Atwater with knowledge that Lieutenant George and Deputy Davis were friends and she admittedly intended to take advantage of their friendship), she went to Lieutenant George, who (1) had continuously called her Ms. Ashwood; (2) was in her chain-of-command; and (3) was also in Deputy Davis' chain-of-command (but not file a complaint against Deputy Davis) and asked if he would "talk to his friend [Deputy Davis]--I don't want to make waves over this-I don't want to make a big to do-if you could talk to him--just have him knock it off." At the final hearing, Deputy Davis denied her third allegation that he would repeatedly come behind her and say--"Ewwww, counselor," and "Counselor, I want to see you." It is significant that after months and three separate allegations of sexual harassment by Deputy Davis, Ms. Atwater chose not to follow protocol and make a sexual harassment complaint against Deputy Davis to Lieutenant George, who would have been obligated to initiate a formal investigation. She chose instead to ask a favor from one who had continuously called her the sexually harassing name of Ms. Ashwood. The evidence is irreconcilably in conflict as to whether Deputy Davis continually made the alleged sexual and harassing comments to Ms. Atwater during an unspecified number of months. The Sheriff presented no witness to corroborate Ms. Atwater's allegations on this issue. Lieutenant George was not called to testify, leaving Ms. Atwater's hearsay testimony regarding this particular issue without corroboration. For the third time, Ms. Atwater chose to not follow protocol and report her third sexual harassment incident. The fact finder acknowledges that her third decided refusal to report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a third time not to report the alleged sexual harassment by Deputy Davis to her immediate supervisor does present a significant obstacle in the evaluation of Ms. Atwater's credibility. Having carefully weighed and evaluated all the relevant, persuasive, and credible evidence, the undersigned is unable to find that Ms. Atwater's testimony is superior in weight and quantity that Deputy Davis for months engaged in the conduct of which Ms. Atwater has accused him. This determination reflects the fact finder's judgment concerning the weight of the evidence and nothing more; it is not a finding regarding what occurred or did not occur during unspecified months when Deputy Davis may have been in the presence of Ms. Atwater. Allegations that Deputy Davis intentionally delayed or caused delay of inmates desiring conference with Ms. Atwater. Regarding her final allegation of sexual harassment by retaliation against Deputy Davis, Ms. Atwater recalled that on one occasion, Deputy Davis intentionally caused a "two-hour" delay in getting inmates on her list from their cells to the conference area where she awaited them. The purported intent of this alleged two-hour delay was to threaten or to produce a negative consequence regarding Ms. Atwater's performance of her duties. I find that Ms. Atwater's August 9, 2002, memo to her supervisor, Deputy Armsheimer, purporting to be a chronology of events that occurred on August 8, 2002, conclusively demonstrates that Deputy Davis was not the cause, directly or indirectly, for Ms. Atwater's two-hour delay in getting the two inmates she had requested. The evidence demonstrates that Ms. Atwater gave her form "62" list (inmates to be pulled who had requested a conference with her) to the control deputy, Deputy Salazar, in barrack C and waited 40 minutes. Returning to the holding area and inquiring as to the whereabouts of her inmates, Deputy Davis and not Deputy Salazar informed Ms. Atwater that the top three inmates on her list were not there. Ms. Atwater asked Deputy Davis of the inmates' whereabouts, but he gave her no further explanation. Ms. Atwater thereafter called Deputy Hartfield, who is in her chain-of-command, to ask if he would look into the matter and Deputy Hartfield promised to get back to her. Ms. Atwater waited for Deputy Hartfield's return call. After waiting an unspecified period of time and not receiving Deputy Hartfield's returned message, she called Deputy Hartfield a second time and was told that he had relayed his message to control (Deputy Salazar) about one and one-half hours ago. In that message, Deputy Hartfield explained that her first requested inmate (no name given) had been moved to maximum security and her second inmate (Brandon) was written up earlier that morning by him. In her August 9, 2002, memo to Deputy Armsheimer, Ms. Atwater wrote, "the conversation concluded with me stating [to Deputy Hartfield] if I had known 1 1/2 hours ago, I would have just left out of here and could have eaten lunch." It is significant that Ms. Atwater authored her August 9, 2002, memorandum to Deputy Armsheimer, for the singular purpose of explaining the exact cause (and persons involved) of her two-hour plus wait for inmates who were not pulled for her. At the final hearing in May 2003, she contradicts her August 9, 2002, written statements by testifying that Deputy Davis caused her a "two-hour" delay in pulling her inmates. This obvious contradiction is a severe detriment upon her credibility. Ms. Atwater's memorandum to Sergeant Groff, dated October 30, 2002, was written to give a recount of her experiences with Deputy Davis during all times pertinent to this case. She began her memorandum with the statement: "[S]o for the whole story to be clear, I must tell you how we ended up here and start from the beginning." In her first sentence of the second paragraph appears the first conflict in the evidence of record. In that sentence, Ms. Atwater writes, "Shortly after starting to work here, I began to experience unpleasantness from Cpl. Kenneth Davis. His obnoxious gestures, comments and disposition could not be tolerated any longer." (This conclusion consisted of the three separate allegations against Deputy Davis made herein above.) With this opportunity to formally complain of sexual harassment in the work place, Ms. Atwater failed to include the fact that it was she who initially asked Deputy Davis why Lieutenant George called her the sexually offensive name of "Ms. Ashwood." Intentionally choosing to allege that Deputy Davis' answer to her question why Lieutenant George kept calling her "Ms. Ashwood" was the initial sexual harassment that created a hostile work place is contradictory to her testimony. Continuing, Ms. Atwater wrote--"I did tell him that I felt he 'played too much,' and need[ed] to stop moaning and groaning behind me." Even though she recounted moaning and groaning, she specifically omitted her alleged verbatim statements made by Deputy Davis (Finding of Fact 12 hereinabove) when he answered her question "why Lieutenant George calls me Ms. Ashwood." This is significant in that Ms. Atwater's testimony was that Deputy Davis' alleged verbatim statements when he answered her question were so "sexually harassing" that she was "immediately" offended the moment she heard them. Yet, she omits any mention that it was Lieutenant George continuously calling her "Ms. Ashwood" that initially and repeatedly offended her. The name Ashwood she considered had such a negative sexual reputation in the community that she was immediately offended and sexually harassed when Lieutenant George first called her Ms. Ashwood and each time thereafter. She omits any mention that it was her inquiry of Deputy Davis, "why Lieutenant George [sexually harassing her] was calling her the offensive name of Ms. Ashwood" that produced the alleged response. Based upon Ms. Atwater's acknowledgement contained in her October 30, 2002, memorandum to Sergeant Groff, I find that her allegations that Deputy Davis caused a delayed wait of two hours to get inmates pulled and, thus, "creat[ed] a hostile work environment" to be contrary to her August 9, 2002, memorandum to Sergeant Armsheimer, admitting that had she known her inmates were not in barrack C, she would have left and had lunch "one and one-half" hours prior. Ms. Atwater further admits in writing that from May of 2002 forward, she and Deputy Davis "barely" spoke to one another. If Ms. Atwater's memory is presumed to be accurate and she and Deputy Davis discontinued speaking to one another during the March through May 2002 period, it was not logical to conclude that Deputy Davis repeatedly and continually moaned and groaned in her ear for "months" thereafter (i.e. June, July, August, and October). For the fourth time, Ms. Atwater chose not to and did not report this fourth incident to her immediate supervisor at or near the time it occurred. Her sexual harassment complaint against Deputy Davis was filed after her October 2002 complaint was filed against Lieutenant George. Her fourth decided refusal to immediately report sexual harassment by the same co-worker is not a defense, if he were guilty of such conduct, and does not absolve Deputy Davis from liability. Her choosing a fourth time not to report the initial alleged sexual harassment by Deputy Davis during the March through May period, when coupled with the contradiction between her testimony that Deputy Davis was the cause of a two-hour delay in pulling her inmates, and her memorandum wherein she acknowledges that her inmates had been written up by Sergeant Hartfield, presents a credibility obstacle. Ms. Atwater makes no further mention of Deputy Davis in her October 30, 2002, memoranda, devoting the remainder to Lieutenant George. She recounts in detail their initial friendly relationship, turning to a cold and unfriendly relationship, the keeping-your-distance treatment, their many phone conversations at work, their lunch dates away from the work place, and their private phone calls when at home, ending on October 24, 2002, with an incident of kissing and Lieutenant George rubbing his groin against her buttocks and her resisting his advances. (See Joint Exhibit J-1.) In her final paragraph, Ms. Atwater relates how, unbeknownst to Lieutenant George, she arranged for a three-way call between herself, Lieutenant George, and her uncle, a City of St. Petersburg employee. She arranged the three-way call for the purpose of securing a witness to corroborate her statements regarding the Lieutenant George sexual harassment encounter. Though her alleged initial sexual harassment was initiated by Deputy Davis and continued for months, Ms. Atwater made no similar attempt to corroborate her claims of sexual harassment against Deputy Davis. Knowing that Deputy Davis was not within her chain-of-command and not in a supervisory position over her, there was no logical reason for Ms. Atwater to fear promotions and job security. Ms. Atwater knew that filing a complaint against a lieutenant within her chain-of- command presented a greater risk than filing a complaint against Deputy Davis who was not in her chain-of-command. Her choosing not to record (or procure corroboration) the Deputy Davis incidents, when coupled with her delay of many months in reporting her compliant through proper channels because of fear of reprisal, rings hollow. It was after the Administrative Review Board had begun an investigation of Ms. Atwater's October 2002 complaint of sexual harassment against Lieutenant George that the Sheriff initiated an investigation of Deputy Davis. Only after her egregious October 24, 2002, incident involving Lieutenant George did she file a subsequent and separate sexual harassment compliant against Deputy Davis. In the absence of corroboration, Ms. Atwater's testimony of a single incident of intentional touching and her testimony of alleged verbatim statements made by Deputy Davis and his unequivocal denial presents a "she said-he said" dilemma. Neither party's testimony is inherently more credible than the other party's testimony. Contrary to the opinion of Major Brunner, who sat on the Administrative Review Board, that when the Administrative Review Board questioned Deputy Davis regarding those allegations, Deputy Davis was "in denial." This assumption and by implication presumed guilt, thereby lending credibility to Ms. Atwater's allegations, is a conclusion not based on fact and is contrary to the evidence adduced during the de novo proceeding. Ms. Atwater's testimony of incidents having occurred over a four-month or more period and the lack of time or specific dates coupled with the contradictions between her testimony during the final hearing and her August 9, 2002, memorandum to her supervisor, creates an unfathomable chasm in the evaluation of her credibility. The Inspection Bureau of the Administrative Inspection Division investigated Ms. Atwater's complaint and submitted their investigative results to the Administrative Review Board, made up of various employees with the Pinellas County Sheriff's Office. The Administrative Review Board determined that Petitioner, Deputy Davis, had violated the Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, Subsection 4: violation of provisions of the law or rules, regulations, and operating procedures of the Pinellas County Sheriff's Office. The Administrative Review Board determined that Deputy Davis' conduct was a violation of the rules and regulations of the Pinellas County Sheriff's Office, Rules 3-1.1 (level five violation) and 5.16, relating to sexual harassment and discrimination as defined in the Sheriff's General Order 3-4. The Administrative Review Board determined that Deputy Davis' available range of discipline was calculated in conformance with the matrix contained within General Order 10-2 of the Pinellas County Sheriff's Office that allocates a point scale to various violations. The matrix provides that a level five offense, which includes sexual harassment, results in a 50- point assessment. Deputy Davis scored a total of 50 cumulative points with a discipline range of five-day suspension up to and including termination. Demotion is also authorized under the applicable General Order. After considering the evidence and available sanctions, the Sheriff notified Deputy Davis on March 10, 2003, that he was imposing a ten-day suspension without pay and demoting him from the rank of corporal to the rank of detention deputy. After weighing all the evidence, including the Sheriff's evidentiary presentation of Ms. Atwater's testimony of verbal comments made and intentional body conduct allegedly engaged in by Deputy Davis, this fact finder finds the uncorroborated hearsay evidence insufficient to prove, by a preponderance of the evidence, the allegations that Deputy Davis made sexually harassing verbal comments to Ms. Atwater, and that he made intentional sexually harassing body contact with her, so as to create a hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding that: Petitioner did not commit the verbal and physical conduct alleged in the charging document and that there was no violation of the rules, regulations, and policies of the Pinellas County Sheriff's Office as alleged. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office was therefore inappropriate. Petitioner's demotion from his previous rank of detention corporal to the rank of detention deputy was therefore inappropriate. Petitioner's ten-day suspension from his employment as a detention corporal with the Pinellas County Sheriff's Office be restored with full detention corporal's pay and benefits. Petitioner be restored to the rank of detention corporal2 and given full duties and responsibilities as previously held. DONE AND ENTERED this 20th day of August, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 20th day of August, 2003.
The Issue The issue is whether Respondent, Rural Metro of North Florida, Inc., violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was hired by Respondent on October 11, 1999, as an Emergency Medical Technician Basic, until July 2001 when he was reclassified with Respondent as an Emergency Medical Technician Paramedic, until his termination from employment with Respondent on April 16, 2003. In July 2001, Petitioner told his then manager, Dominic Persichini, that he no longer wanted to work with his partner, Marlene Sanders, and he requested a transfer. Petitioner gave as his reason for the transfer that Ms. Sanders was interested in him in an inappropriate way which disrupted his family life. He never actually heard Ms. Sanders make any inappropriate sexual remarks directed at him. Ms. Sanders accused Petitioner of allowing his wife to interfere with their working relationship and to involving herself in Ms. Sanders' personal life, which made her uncomfortable working with Petitioner. On March 27, 2002, Stephen Glatstein, Respondent's new General Manager, wrote a letter to Petitioner in which he acknowledged that problems had occurred between Petitioner and Ms. Sanders, that the two of them would be separated and reassigned to new shifts, and that Petitioner was being reassigned to the B-shift rotation (1800-0600 hours), which conflicted with his family duties. Petitioner received a good evaluation and a pay raise dated February 15, 2003, in which his supervisor, Ryan Jenkins, stated that "Michael's abilities meet or exceed industry standards. Michael keeps current by completing CEU's and taking refresher classes. There is one new Corrective Action Notice in his file since last year involving a post move. The incident was on 08-07-02 and to my knowledge there have not been any further problems since." Further, the evaluation reads that "Michael shows a great attitude and appears to really enjoy his job. This makes him very easy to work with. Michael's good personality and working knowledge of E.M.S. is a benefit to the customers that he serves. It is clear that we should be proud to have Michael as part of our team." Petitioner received letters of commendation from his supervisors and letters of thanks from patients and their families he had served. In April 2003, Natashia Duke, a new employee with Respondent, went to the General Manager, Mr. Chalmers, and accused Petitioner of having made statements of a sexual nature to her and of touching her inappropriately. Ms. Duke provided a written statement to Mr. Chalmers who forwarded the information to the Division General Manager, Chris Rucker. Mr. Rucker advised Mr. Chalmers to place Petitioner on paid administrative leave pending the outcome of an investigation concerning Ms. Duke's complaint. Mr. Chalmers followed this instruction and placed Petitioner on leave. Mr. Rucker traveled to Pensacola to meet with Mr. Chalmers and Ms. Duke. At this meeting, Ms. Duke reaffirmed what she had written in the complaint against Petitioner and told Mr. Rucker and Mr. Chalmers about another employee she believed had been sexually harassed by Petitioner, Kristy Bradberry. The next day, Mr. Rucker and Mr. Chalmers interviewed Ms. Bradberry who informed them that she had been sexually harassed by Petitioner. She provided a written statement which described the alleged harassment in detail. Ms. Bradberry told the interviewers of another person she believed had suffered sexual harassment by Petitioner, Tina Dunsford (Tina Richardson at the time of her complaint). Mr. Rucker and Mr. Chalmers next interviewed Ms. Dunsford who confirmed that Petitioner had sexually harassed her as well by making sexual comments and propositions to her, and by touching her inappropriately. After Ms. Dunsford's interview, Ryan Jenkins, another of Respondent's employees, reported that Ms. Dunsford had complained to him of sexual harassment by Petitioner a few months earlier. Mr. Jenkins had failed to take any action on the previous complaint. After interviewing the three complainants, Ms. Duke, Ms. Bradberry, and Ms. Dunsford, Mr. Rucker and Mr. Chalmers met with Petitioner. At that meeting, Petitioner denied all of the allegations made by the three female co-workers and gave no explanation for what they alleged had happened. Mr. Rucker believed the statements given by the three female co-workers who complained of sexual harassment by Petitioner were credible. Mr. Rucker made the decision with Mr. Chalmers to terminate Petitioner's employment. Respondent had no prior history of problems with any of the three female co-workers who complained of sexual harassment by Petitioner. Petitioner believes the sexual harassment charges were trumped up against him so that Respondent could fire him, since he was beyond the company probationary period and therefore could be terminated only for a business purpose pursuant to the company employee handbook. No evidence was produced at hearing to support a violation of company policy by Respondent in Petitioner's termination. At the time of hearing, Petitioner was employed with the Escambia County E.M.S.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 24th day of February, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael J. Welch 2060 Burjonik Lane Navarre, Florida 32566-2118 John B. Trawick, Esquire Shell, Fleming, Davis & Menge 226 Palafox Place Post Office Box 1831 Pensacola, Florida 32591-1831 Cecil Howard, 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 Respondent operates the Best Western Admiral’s Inn and Conference Center in Winter Haven. Petitioner worked as a waitress in the hotel’s first floor restaurant from March 8, 2005, through March 18, 2006. Petitioner testified that she was sexually harassed “for months” by Marcus Owens, a cook who worked with her in the restaurant. According to Petitioner, Mr. Owens made vulgar and sexually-explicit comments to her on a number of occasions while they were working together. Petitioner could not recall precisely when the harassment started, but she estimated that it started approximately two weeks after Mr. Owens started working at the restaurant. Mr. Owens started working in the restaurant on July 28, 2005, which means that the harassment would have started in mid- August 2005. Petitioner did not complain about the harassment until November 9, 2005, when she reported it to her supervisor, Cory Meeks. This was the first notice that Respondent had about the alleged harassment. Petitioner’s testimony that she complained to the hotel’s general manager, Jeffrey Vandiver, about the harassment several weeks prior to her complaint to Mr. Meeks was not persuasive. Petitioner and Mr. Meeks met with the hotel’s human resources manager, Lin Whitaker, on the same day that the complaint was made, November 9, 2005. Ms. Whitaker told Petitioner that she needed to put her complaint in writing for the hotel to take formal action. Petitioner refused to do so because she was scared of retribution by Mr. Owens, even though Mr. Meeks and Ms. Whittaker assured her that she would be protected from Mr. Owens. Petitioner asked Mr. Meeks and Ms. Whitaker to address the situation with Mr. Owens without using her name, which they did. Mr. Owens denied sexually harassing anyone when confronted by Mr. Meeks and Ms. Whitaker. On December 2, 2005, Petitioner again complained to Mr. Meeks about Mr. Owens. She told Mr. Meeks that the harassment had not stopped and that it had gotten worse through even more vulgar comments. Petitioner again did not want a formal investigation into the allegations, but Ms. Whitaker told her that an investigation was required by company policy since this was the second complaint. Mr. Owens was immediately suspended without pay pending the completion of the investigation. The investigation was conducted by Mr. Vandiver, Mr. Meeks, and Ms. Whitaker on December 7, 2005. They first met with Petitioner to get her side of the story. Then, they met separately with Mr. Owens to get his side of the story. Finally, they interviewed all of the employees who worked with Petitioner and Mr. Owens. This was the first time that Petitioner went into detail about what Mr. Owens had said and done. She stated that, among other things, Mr. Owens asked her whether she had “ever had a black man” and whether her boyfriend “is able to get it up or does he require Viagra.” She also stated that there were no witnesses to the harassment because Mr. Owens was "discreet" about making the comments to her when no one else was around. Mr. Owens again denied sexually harassing anyone. He acknowledged asking Petitioner whether she had ever dated a black man, but he stated that the question was in response to Petitioner asking him whether he had ever dated a white woman. (Mr. Owens is black, and Petitioner is white.) The other employees who were interviewed as part of the investigation stated that they had not witnessed any sexual harassment or overheard any sexually explicit conversations in the restaurant. Mr. Vandiver, Mr. Meeks, and Ms. Owens concluded based upon their investigation that “there is not enough evidence of sexual harassment to terminate Marcus Owens.” They decided to let Mr. Owens continue working at the hotel, provided that he agreed to be moved to the hotel’s second floor restaurant and that he agreed to attend a sexual harassment training program. On December 8, 2005, Mr. Meeks and Ms. Whitaker conveyed the results of their investigation and their proposed solution to Petitioner. She was “fine” with the decision to move Mr. Owens to the second floor restaurant where she would not have contact with him. On that same day, Mr. Meeks and Ms. Whitaker conveyed their proposed solution to Mr. Owens. He too was “fine” with the decision, and he agreed that he would not go near Petitioner. Mr. Owens came back to work the following day, on December 9, 2005. On December 14, 2005, Mr. Owens was involved in an altercation with Stephen Zulinski, a dishwasher at the hotel and a close friend of Petitioner’s. The altercation occurred at the hotel during working hours. Mr. Zulinski testified that the incident started when Mr. Owens made vulgar and sexually explicit comments and gestures about Mr. Zulinski’s relationship with Petitioner. Mr. Zulinski was offended and angered by the comments, and he cursed and yelled at Mr. Owens. Mr. Zulinski denied pushing Mr. Owens (as reflected on Mr. Zulinski’s Notice of Termination), but he admitted to putting his finger on Mr. Owens’ shoulder during the altercation. Mr. Owens and Mr. Zulinski were immediately fired as a result of the altercation. Petitioner continued to work as a waitress at the hotel’s first floor restaurant after Mr. Owens was fired. Petitioner received awards from Respondent for having the most positive customer comment cards for the months of October and November 2005, even though according to her testimony she was being sexually harassed by Mr. Owens during those months. She testified that her problems with Mr. Owens affected her job performance only to a “very small degree.” Petitioner had no major problems with her job performance prior to December 2005, notwithstanding the sexual harassment by Mr. Owens that had been occurring “for months” according to Petitioner’s testimony. Petitioner was “written up” on a number of occasions between December 2005 and February 2006 because of problems with her job performance. The problems included Petitioner being rude to the on-duty manager in front of hotel guests; taking too many breaks and not having the restaurant ready for service when her shift started; failing to check the messages left for room service orders; and generating a guest complaint to the hotel’s corporate headquarters. Petitioner was fired after an incident on March 11, 2006, when she left the restaurant unattended on several occasions and the manager-on-duty received complaints from several hotel guests about the quality of service that they received from Petitioner that night. Petitioner ended up being sent home from work that night because, according to her supervisor, “she was in a crying state,” unable to work, and running off the restaurant’s business. Petitioner’s employment with Respondent was formally terminated on March 18, 2006. The stated reason for the termination was “unsatisfactory work performance” and “too many customer complaints.” None of the supervisors who wrote up Petitioner were aware of her sexual harassment complaints against Mr. Owens. Petitioner claimed that the allegations of customer complaints and poor job performance detailed in the write-ups were “ludicrous,” “insane,” “almost a complete fabrication,” and “a joke.” The evidence does not support Petitioner’s claims. Petitioner admitted to having “severe” bi-polar disorder, and she acknowledged at the hearing and to her supervisor that she was having trouble with her medications over the period that she was having problems with her job performance. For example, the comment written by Petitioner on the January 27, 2006, write-up stated that she was “at a loss” to explain her job performance and that she “hope[d] to have [her] mental stability restored to what everyone else but [her] seems normalcy.” Petitioner worked 25 to 30 hours per week while employed by Respondent. She was paid $5.15 per hour, plus tips, and she testified that her biweekly take-home pay was between $200 and $250. Petitioner applied for unemployment compensation after she was fired. Respondent did not dispute the claim, and Petitioner was awarded unemployment compensation of $106 per week, which she received for a period of six months ending in September 2006. Petitioner has not worked since she was fired by Respondent in March 2006. She has not even attempted to find another job since that time. Petitioner does not believe that she is capable of working because of her bi-polar disorder. She applied for Social Security disability benefits based upon that condition, but her application was denied. Petitioner’s appeal of the denial is pending. Petitioner testified that one of the reasons that she has not looked for another job is her concern that doing so would undermine her efforts to obtain Social Security disability benefits. Respondent has a general “non-harassment” policy, which prohibits “harassment of one employee by another employee . . . for any reason.” Respondent also has a specific sexual harassment policy, which states that “sexual harassment of any kind will not be tolerated.” The policy defines sexual harassment to include verbal sexual conduct that “has the purpose or effect of interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.” The general non-harassment policy and the specific sexual harassment policy require the employee to immediately report the harassment to his or her supervisor or a member of the management staff. The Standards of Conduct and the Work Rules adopted by Respondent authorize immediate dismissal of an employee who is disrespectful or discourteous to guests of the hotel. The Standards of Conduct also authorize discipline ranging from a written reprimand to dismissal for an employee’s “[f]ailure to perform work or job assignments satisfactorily and efficiently.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Donald T. Ryce, Esquire 908 Coquina Lane Vero Beach, Florida 32963 Nora E. Bartolone 119 Alachua Drive Southeast Winter Haven, Florida 33884
The Issue 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
