The Issue Whether Carl G. Bott, Jr., is guilty of immorality, misconduct in office and/or gross insubordination?
Findings Of Fact During the period of time at issue in this proceeding, Carl G. Bott, Jr., was an employee of the School Board of Putnam County under a continuing contract. Mr. Bott has been employed as a teacher for approximately ten years. Mr. Bott was a teacher and Dean in the County Alternative School Program during the 1984-1985 through 1988-1989 school years. During the 1984-1985 and the 1985-1986 school years the County Alternative School Program was located on the second floor of the Campbell Administrative Building. The County Alternative School Program was renamed the District Opportunity Center and was located on the Davis Lake Road side of the campus of E. H. Miller School during the 1986-1987, school year. Mr. Bott continued to work at the District Opportunity Center during the 1987-1988 school year and part of the 1988-1989 school year. During the 1984-1985 through 1988-1989 school years Diane Wilkinson was employed as a secretary for the County Alternative School Program and the District Opportunity Center. Mr. Bott was her immediate supervisor and prepared Ms. Wilkinson's evaluations during this period of time. During the 1984-1985 and 1985-1986 school years Mr. Bott was in charge of the County Alternative School Program. During the 1984-1985 and the 1985-1986 school years Mr. Bott made comments to Ms. Wilkinson of a sexual nature. In particular, Mr. Bott told Ms. Wilkinson that she had a nice ass, but that [her] stomach needed to be tightened up; and he also made statements in regard to women's nipples showing through their clothes, that's a real turn on to him, for women to get cold on for their nipples to show through their clothing.." Page 199, lines 113-17, Transcript of Administrative Hearing. Sometime during the 1985-1986 school year Mr. Bott intentionally placed his hand on Ms. Wilkinson's right breast without permission, warning or provocation. Mr. Bott's act was a sexual advance toward Ms. Wilkinson. This incident occurred while Mr. Bott and Ms. Wilkinson were in Ms. Wilkinson's small office discussing business. When Mr. Bott touched Ms. Wilkinson, she said nothing and looked at him with a shocked expression. When Ms. Wilkinson did not respond to his advance, Mr. Bott removed his hand and left the room. Ms. Wilkinson did not report the incident to anyone. Nor was anything said about the incident by Ms. Wilkinson or Mr. Bott. Approximately six to nine weeks before the County Alternative School Program was moved to Davis Lake Road, Mr. Bott came into Ms. Wilkinson's office where she was typing, walked up behind her and reached over her shoulders and intentionally touched her breast from behind without permission, warning or provocation. Again, Ms. Wilkinson said nothing. She looked at him with a shocked expression and Mr. Bott then removed his hand and left the room. On the same day that the second incident occurred, Ms. Wilkinson called Evie Shellenberger, the Director of Personnel for the Petitioner, and set up an appointment for the next day to report the incident. The day after the second incident, Ms. Wilkinson told Mr. Bott that I can have your teaching certificate lifted for sexual harassment if you ever touch me again . Page 205, lines 9-10, Transcript of Administrative Hearing. Mr. Bott told Ms. Wilkinson that he realized that she was correct, he apologized to her and promised it would never happen again. Ms. Wilkinson kept her appointment with Ms. Shellenberger and reported both incidents. She did not, however, file a sexual harassment charge against Mr. Bott. Ms. Wilkinson did not file charges because Mr. Bott had apologized and promised not to touch her again and she did not want to harm his family or his career. Ms. Wilkinson was concerned for Mr. Bott because he had a son who had been sick and Mrs. Bott had had cancer. After moving to Davis Lake Road, Mr. Bott continued to make inappropriate comments to Ms. Wilkinson of a sexual nature. The frequency of the statements increased, especially during the 1987-1988 school year. In particular, Mr. Bott made the following statements to Ms. Wilkinson: That he had been a virgin until he was 21 years old, and therefore "he needed to get all the sex he could possibly get to make up for lost time." That he masturbated in the shower with hand cream. That he had had a wet dream about her and he had to get up and clean himself up and clean the sheets up. That "he had had a dream about [them] being in the back seat of a car and that [they] had made love, and that he had climaxed all over the bed, and that it seemed so real to him that he could even smell [her] cologne." That he had calluses on the palms of his hands from masturbating. That "he could really satisfy me [Ms. Wilkinson] sexually without his teeth, and that he knew how -- he could gum me [Ms. Wilkinson] to death, and that he really knew how to satisfy women without his teeth in." That his wife "was so fat and so ugly that he had a hard time making love to her, and that he had to really fantasize when he was having sex with her, to pretend he was with someone else instead of her, because she had dimples in her ass and she was so fat and so overweight it was like she had two sets of breasts, one in the front and one in the back behind her armpit in regard to a fatty kind of area on her." That "I intend to have you [Ms. Wilkinson] in bed before we go our separate ways." That he had made love with a woman (not his wife) in his boat and he had been afraid that he was not going to be able to get his clothes on before the Florida Marine Patrol caught him. That he needed "a piece of ass from someone 18 to 21 years old because he didn't want to get too old to go out and enjoy it." The more explicit sexual statements Mr. Bott made to Ms. Wilkinson were not made continuously. There would be periods of time when he would not make such statements. There were, however, periods of time when the types of statements quoted above would be made and then he would be quiet again. Ms. Wilkinson did not ask Mr. Bott to stop making the statements. She also did not tell anyone about the statements Mr. Bott was making to her. In approximately March, 1988, Ms. Wilkinson did talk to Rita Moody, president of the union to which Ms. Wilkinson belonged, about changing positions and informed her of Mr. Bott's behavior. There were not any positions available, however, and Ms. Moody suggested that Ms. Wilkinson should not "open a can of worms" by reporting the incidents. Despite the incidents related above involving Mr. Bott and Ms. Wilkinson, Ms. Wilkinson and Mr. Bott were friendly to each other and discussed personal matters as well as matters related to their work. They ate lunch with each other on occasion and Mr. Bott gave Ms. Wilkinson rides to and from her home and the office on occasion. Ms. Wilkinson also actively assisted Mr. Bott in protecting the program they worked in and assisted him in remaining with the program because she considered him an asset to the program. At the beginning of the 1986-1987 school year, Jean Herring was assigned as an Assistant Principal in charge of the District Opportunity Center. Ms. Herring was Mr. Bott's immediate supervisor during the 1986-1987 school year. Because Mr. Bott had previously been in charge of the program, he had some resentment about Ms. Herring's position. During the Spring of 1988, Ms. Herring received a complaint from Dana Hales, a female student at the District Opportunity Center. Ms. Hales alleged that Mr. Bott was using inappropriate language and discussing inappropriate topics with female students. (See findings of fact 23 and 24). Ms. Hales indicated that she felt uncomfortable in one-on-one counseling sessions with Mr. Bott. Based upon this complaint, Ms. Herring directed Mr. Bott not to conduct any one-on-one counseling sessions with female students without including Ms. Herring in the session. The next morning, Ms. Herring discovered Mr. Bott conducting a one-on-one counseling session with a female student in violation of her directive to him. Ms. Herring did not see Mr. Bott violate the directive again. Dana Hales complained to Ms. Herring because of statements Mr. Bott made to her of a sexual nature. Those statements included a statement "that he had an affair with a young girl from where he came from before and that he wished he could find a young girl here that he could trust that ... would not tell anyone." Page 142, lines 5-8, Transcript of Administrative Hearing. Mr. Bott also made comments to Ms. Hales concerning his wife. Mr. Bott told Ms. Hales that his wife "was ugly and that she was fat, and in the morning like in the daylight that she was very ugly and unattractive." Page 142, lines 15-17, Transcript of Administrative Hearing. Tonnette Sanders moved to Putnam County after the 1987-1988 school year had begun. Therefore, she was placed in the District Opportunity Center. She was not placed there for disciplinary reasons. Ms. Sanders was approximately 17 or 18 years of age. Mr. Bott was not one of Ms. Sanders' teachers. Mr. Bott and Ms. Sanders did become friends, however, and Mr. Bott provided counseling to Ms. Sanders. While walking into an office together, Mr. Bott patted Ms. Sanders on her buttocks. Ms. Sanders believed that the touching was a sexual advance and it made her feel uncomfortable. Ms. Sanders did not return to school for several days after the incident because she was upset. When she did return, Mr. Bott apologized to her for his action. Mr. Bott also told Ms. Sanders that she was the nicest looking black girl he had had ever seen." Cynthia Bartrum Schmurmand attended the District Opportunity Center during the 1986-1987 school year. Ms. Schmurmand was 14 or 15 year of age at the time. Mr. Bott provided GED preparation training approximately 45 minutes a day to Ms. Schmurmand and other female students. Initially there were four or five students who attended the sessions. Eventually, however, only Ms. Schmurmand and another student, Wendy Parker, attended the sessions. Mr. Bott did not always provide instruction to Ms. Schmurmand and Ms. Parker. Instead, Mr. Bott, Ms. Schmurmand and Ms. Parker would just talk. During these conversations, Mr. Bott told Ms. Schmurmand and Ms. Parker that he had been out with girls their age. He also told Ms. Schmurmand and Ms. Parker that they could get older and more mature men. Mr. Bott offered to take Ms. Schmurmand and Ms. Parker out on his fishing boat with the permission of their parents. Mr. Bott told them that "they would get some beer" even though Mr. Bott knew that they were not of legal drinking age. Mr. Bott allowed Ms. Schmurmand and Ms. Parker to smoke cigarettes in his office during at least one of the sessions. Mr. Bott provided the cigarettes. The use or possession of tobacco or tobacco products on school grounds was prohibited. Mr. Bott warned the students that if they ever let anyone know that they had been allowed to smoke, he would get into trouble and so would they. In addition to Mr. Bott's duties at the District Opportunity Center, he also taught health classes until December 1988 and for approximately three years preceding the 1988-1989 school year at the St. Johns River Community College. The courses taught by Mr. Bott were extra-credit classes taken by senior high students who needed additional credits to graduate from high school. During the Fall of 1988, Mr. Bott's health class was first aid. The class met from 3:30 p.m. until 6:00 p.m. on Monday and Wednesday. The students who attended the class were from Palatka High School and were 17 years of age or older. During the Fall of 1988, Mr. Bott made inappropriate statements to, or engaged in inappropriate conduct in front of, students in his first aid class as follows: Mr. Bott told students that his wife used to have a "nice ass" and "boobs" or "big melons", and now she is "fat and ugly." Mr. Bott wore a pin during class on his shirt which had the following words printed on it: "Sex Cures Headaches." Mr. Bott wore the pin for approximately thirty minutes. When a student asked about the pin, Mr. Bott took it off and indicated that he had forgotten he had it on. While discussing body lice, Mr. Bott told the class that he had once had "crabs." He indicated that he did not know how he had gotten them, implying that he had been involved with several different women. Mr. Bott cussed in front of the students. He used the words "dam", "ass", "bitch", "God damn" and "fuck." On one occasion Mr. Bott, while waking a student up, told the class that males have sexual fantasies every eleven minutes. Mr. Bott, while discussing the subject of drugs, told the class that marijuana makes women want to have sex or that smoking marijuana makes sex better. Mr. Bott told the students a story about a boy and girl who were riding in an automobile with the gear shift located on the floor of the automobile between the two front seats. Mr. Bott indicated that the boy was driving and the girl was sitting on a pillow between the two front seats. Mr. Bott told the class that the automobile was involved in a wreck or stopped suddenly for some other reason and that the gearshift "went up the girl" or that the "gearshift jammed up in her" and that "she took it whole." Mr. Bott also told the students a story about two couples who were riding in an automobile. Mr. Bott indicated that one couple was in the back seat of the car and they were "making out." Mr. Bott then told the class that the automobile was involved in a wreck and the boy "bit the girl's nipple off." He also said that the boy "swallowed it" and that the nipple was "a beautiful one." Mr. Bott also told this story during the 1987-1988 school year. Mr. Bott, while discussing genital injuries, told the class that he knew of a man who had sustained a genital injury. Mr. Bott stated that "his balls swelled up" and that they "were the size of baseballs." Mr. Bott told the class that "oysters put lead in the pencil." During the 1987-1988 school year, Dana Hales attended Mr. Bott's health class. Ms. Hales was walking to her automobile after one class when Mr. Bott told her that she "had the [tits or breasts] of a 25 year old." Mr. Bott also told Ms. Hales during the 1987-1988 school year that she would "stand out more" if she lost some weight. Mr. Bott was referring to Ms. Hales' chest when he made this statement. Vanessa Armster was an eighteen-year-old student at Palatka High School during the Fall of 1988. Ms. Armster attended Mr. Bott's health class during the Fall of 1988. In November, 1988, Ms. Armster missed four classes, in violation of Mr. Bott's policy that students could only miss three or less classes in order to pass the class. Mr. Bott, in deviation from his policy concerning absences, told Ms. Armster that she could make up her fourth absence by coming to his classroom at the District Opportunity Center after school the day after her fourth absence. Ms. Armster had a friend take her to the District Opportunity Center at 3:00 p.m. Mr. Bott gave her work to perform. Most of the time that Ms. Armster was at the District Opportunity Center no one was present in the room with her except Mr. Bott. While Ms. Armster was performing the work given to her by Mr. Bott, Mr. Bott made the following comments to her: Mr. Bott told Ms. Armster that he was scared for her to come to the District Opportunity Center because "he didn't know how he was going to react." Mr. Bott asked Ms. Armster "are those for real?" Mr. Bott was referring to Ms. Armster's breasts. Ms. Armster took these comments to be sexual in nature. Ms. Armster, as a result of Mr. Bott's comments, felt uncomfortable and scared in a one-on-one situation with Mr. Bott. The person who was suppose to give Ms. Armster a ride home did not arrive when she was ready to leave. Mr. Bott offered to give her a ride and Ms. Armster accepted. As Mr. Bott and Ms. Armster left the building, Mr. Bott noticed a football team practicing nearby and said that "someone might think something." Mr. Bott and Ms. Armster got into his pick-up truck. While in the truck Mr. Bott was telling Ms. Armster something about a heart attack and was referring to an area of his chest or side. While trying to indicate a location on his body, Mr. Bott moved his hand toward Ms. Armster. Ms. Armster jumped back when Mr. Bott moved his hand toward her. When Ms. Armster jumped, Mr. Bott said "oh, you just thought I was going to touch there" and intentionally put his hand on Ms. Armster's right breast. When Mr. Bott touched Ms. Armster she jumped back and he laughed. Following this incident, Mr. Bott dropped Ms. Armster off. Mr. Bott's actions have affected the way in which students view him as a teacher. In addition to the effects of Mr. Bott's actions already noted, Mr. Bott's actions had the following effects: At least two students perceived that Mr. Bott looked at Ms. Armster differently than he looked at other students; and Various students in Mr. Bott's health class found many of the sexual statements and incidents to be inappropriate and, in some cases, offensive and embarrassing. Mr. Bott's preoccupation with sexual matters was further evidenced by the following incidents which occurred during the period of time at issue in this proceeding: Mr. Bott told Beverly Emmons, a secretary at E. H. Miller School, that he like the blouses that Debbie Thomas, a teacher's aide, wore because her nipples stuck out. Mr. Bott made a comment about Debbie Thomas nipples being hard while she was lifting weights. This comment was made in front of Ms. Thomas and Diane Alred, an adaptive physical education teacher. Mr. Bott also patted Ms. Thomas on the buttocks. Mr. Bott was suspended with pay by the Superintendent of the Petitioner on December 2, 1988. At a regularly scheduled meeting of the Petitioner on December 5, 1988, Mr. Bott was charged with immorality, misconduct in office and gross insubordination and was suspended without pay. By letter dated December 5, 1988, Mr. Bott requested a formal administrative hearing.
Conclusions The District School Board of Putnam County hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Based on the foregoing, and the recommendation made by the Hearing Officer in the above styled case, it is ADJUDGED that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Florida Statutes Section 231.36(4)(c) and, accordingly, his suspension without pay from December 5, 1988 through January 5, 1990 is affirmed; it is further ADJUDGED that Carl G. Bott, Jr. is dismissed from his employment with the District School Board of Putnam County effective the date of this Order. DONE AND ORDERED this 12th day of January, 1990, in Palatka, Florida. District School Board of Putnam County Elaine Murray, Chairman
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case finding that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Section 231.36(4)(c), Florida Statutes, and dismissing him from his employment with the Petitioner. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 21st day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0572 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-4, 34. 2 39. 3 40. 4 41. 5 42. The last two sentences are cumulative and unnecessary. 6 See 42-44. 7 Hereby accepted. 8 44. Not relevant to this proceeding. See 50. The last sentence is not supported by the weight of the evidence. 11 45. 12 46. 13 47. 14 49. 15-27 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 28 Hereby accepted. 29a 36b. 29b 36f. 29c 36j. The last sentence is not supported by the weight of the evidence. 29d 36i. 29e 36a. 29f 36c. 29j 36g and h. 29h 36e. 29i Not supported by the weight of the evidence. 29j 36d. 30 50. 31-33 See 50. These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 36h, 37-38. The statements were made, however, in 1987 and not in 1988. Not supported by the weight of the evidence. Hereby accepted. 37 2 and 22. 38 22. 39 23. 40 22. Hereby accepted. 22 and hereby accepted. 43 21-22. 44 22. 45 Hereby accepted. 46-49 Not relevant to this proceeding. 50 Hereby accepted. 51-54 Not relevant to this proceeding. 55-56 25. 57 26. 58-59 27-28. 60 29. 61 30. 62 29-30. 63 See 31. 64 32. 65-66 33. 67 Not relevant to this proceeding. 68 31. 69 50. 70 3-5. 71 2 and 5. 72 5. 73 7. 74 Hereby accepted. 75-77 8. Ms. Wilkinson did engage in personal and sexual conversations with Mr. Bott. 78 8-9. 79 10. 80 11. 81 11-12. 82 Hereby accepted. 83 13. 84 14. 85 15. 86 16. 87 16-17. 88 18. 89 19 and hereby accepted. 90-91 Hereby accepted. 92 51. The last two sentences of 92b are rejected as hearsay. 93-101 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order. 102-104 Hereby accepted. Mr. Bott's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 50. Not relevant to this proceeding. 34 and 36 c and f. 35 and hereby accepted. See 36a. Taken into account in the weight that was given to the testimony concerning the incidents they testified about. 7-9 See 50. The last sentence of proposed finding of fact 7 and all of proposed findings of fact 8 and 9 constitutes a summary of testimony. This testimony was considered in making relevant findings of fact. 10-11 Not relevant to this proceeding. Not supported by the weight of the evidence. Hereby accepted. Taken into account in the weight that was given to the testimony concerning this incident. 15-17 See 50. 18 Hereby accepted. 19-20 See 50. Although it is true that Ms. Walker testified in this manner, the testimony was rejected. Not relevant to this proceeding. See 50. 24 2. 25 See 25-28 and 50. 26 Not supported by the weight of the testimony. 27-28 See 33. 29 37. 30 37-38. 31 Not relevant to this proceeding. 32-33 This testimony was rejected. 34-35 Hereby accepted. 36 22. 37-38 Hereby accepted. Not relevant to this proceeding. 20. The last sentence is not relevant to this proceeding. Not relevant to this proceeding. 42 5. 43-44 See 17-19. Ms. Wilkinson's testimony about not discussing personal matters with Mr. Bott was based upon her definition of "personal matters." 45 Not relevant to this proceeding. 46 19. 47-48 Not relevant to this proceeding. Hereby accepted. Not relevant to this proceeding. COPIES FURNISHED: Joe H. Pickens, Esquire Post Office Box 2128 Palatka, Florida 32078-2128 Lorene C. Powell, Esquire FEA/United 208 W. Pensacola Street Tallahassee, Florida 32399-1700 Mr. C. L. Overturf Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 =================================================================
The Issue The issue presented for decision in this case is whether Petitioner, St. Petersburg Junior College, should dismiss Respondent from his employment and terminate his continuing contract.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is an instructor in computer programming and networking at the College. Respondent has been an instructor at the College since 1983. Since the 1986-87 academic year, Respondent has worked under a continuing contract of employment. A continuing contract is tantamount to a tenured position, entitling the instructor to maintain his position from year-to-year unless terminated by mutual consent, by the instructor’s resignation, or by the suspension or removal of the instructor for cause pursuant to the statutes and rules of the State Board of Education. Respondent has received at least above-average evaluations of his job performance both from the institution and from his students during his tenure at the College. Respondent has not been subject to disciplinary proceedings of any kind prior to or since the incidents giving rise to this proceeding. Kimberly Zemola, a married woman in her late twenties, was a student in Respondent’s classes during Session II and Session III of the 1994-95 academic year. In January 1995, while she was a student in Respondent’s class, Ms. Zemola wrote an anonymous note to Respondent suggesting that they commence a relationship and that Respondent should indicate his interest by wearing a certain sweater to class on a certain day. Respondent wore the sweater as suggested in the note. Respondent testified that his purpose in doing so was not to initiate a relationship, but to identify the author of the note, discover her problem, and direct her into obtaining assistance. Respondent and Ms. Zemola met. Their testimony was consistent in describing that they were both involved in troubled marriages, spent a great deal of time discussing their problems with each other, and, over a period of weeks, became close friends and confidants. During the period of January through May 1995, the relationship was not sexual, though there was some holding of hands and kissing during their meetings. During the summer session of 1995, while Ms. Zemola was a student in Respondent's class, Respondent and Ms. Zemola engaged in consensual sex. Both Respondent and Ms. Zemola testified that this occurred on only one occasion, in June 1995. Respondent and Ms. Zemola continued their relationship until December 1995, at which point Ms. Zemola ended it. Ms. Zemola testified that in January 1996, after she ended the relationship with Respondent, she was diagnosed as clinically depressed. She testified that she believed Respondent took advantage of her depressed condition in pursuing a relationship with her. Respondent testified that Ms. Zemola mentioned suicidal thoughts on one occasion in late 1995, and that she revealed to him that she had been addicted to drugs and was a victim of child abuse. Nonetheless, Respondent testified that he had no knowledge Ms. Zemola was fighting depression during the period of their relationship. In January 1996, John Zemola, the husband of Kimberly Zemola, phoned Myrtle Williams, Associate Provost of the Gibbs Campus, to complain that Respondent had an affair with his wife. Ms. Williams testified that Mr. Zemola was very agitated, so she invited him to her office to discuss the matter. Mr. Zemola met in person with Ms. Williams, and a little later in the day had a second meeting with both Ms. Williams and Charles Roberts, the Provost of the Gibbs Campus. Ms. Williams and Dr. Roberts testified that Mr. Zemola was very agitated and upset, expressing a great deal of anger toward Respondent. Mr. Zemola repeatedly demanded to know what the College was going to do about the situation. Shortly after his meeting with Mr. Zemola, Dr. Roberts called Respondent and asked him to come over to his office. Dr. Roberts testified that his main concern in calling Respondent was to warn him of Mr. Zemola’s angry and agitated state. Dr. Roberts also alerted campus security of the situation. At this meeting with Dr. Roberts, Respondent openly and voluntarily acknowledged his relationship with Ms. Zemola, including the romantic aspects thereof. The only discrepancy was that Respondent recalled the sexual encounter as having occurred after Ms. Zemola was a student in his class, whereas Ms. Zemola recalled that it occurred when she was a student in Respondent’s class. Ms. Williams and Dr. Roberts investigated the matter further, attempting to set up a meeting with Ms. Zemola herself. It took them roughly ten days to two weeks to set up this meeting, which finally occurred in Dr. Roberts’ office. Present at the meeting were Dr. Roberts, Ms. Williams, and the Zemolas. At this meeting, Ms. Zemola acknowledged the relationship with Respondent, and acknowledged that it was she who initiated it. Both of the Zemolas were adamant that Respondent should not be permitted to continue teaching at the College. \ 18. Mr. Zemola in particular seemed intent on seeing Respondent punished. Ms. Williams testified that Mr. Zemola telephoned her “all the time talking about what are we going to do about Mr. Brooks.” Mr. Zemola’s threatening demeanor led Ms. Williams to move Ms. Zemola’s classes to a different campus, so that Respondent and Ms. Zemola would not be in each other’s presence. Ms. Williams testified that this precaution was taken, not because of Respondent or Ms. Zemola, but because of John Zemola. No evidence was presented that Respondent ever attempted to contact Ms. Zemola after she ended the relationship. In January 1996, Ms. Williams began attempting to get Ms. Zemola to sign an affidavit stating the facts of the situation. Ms. Zemola initially declined to do so, her stated reason being that she feared Respondent’s influence in the local market could jeopardize her academic future. No evidence was presented that Respondent ever took any action to adversely affect Ms. Zemola’s academic standing or career, either within or outside of the College setting. In a memorandum to Respondent, dated February 8, 1996, Dr. Roberts recounted the details of the charges leveled by the Zemolas, as well as Respondent’s admissions regarding his relationship with Ms. Zemola. The memorandum recited portions of the College’s “Sexual Harassment Policy and Definitions” (the “Policy”). Under the Policy, “sexual harassment” is defined as: An employee’s or a student’s unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, sexually related jokes, display of pornographic material in the workplace or an academic or student setting (An academic or student setting includes all settings on campus, off-campus clinical programs, off- campus courses, and off-campus college- sponsored events), when submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment or an individual’s treatment as a student; submission or rejection of such conduct by an individual is used as the basis for employment decisions or the treatment of a student affecting such individual; or such conduct has the purpose or effect of unreasonably interfering with an individual’s work or a student’s academic performance or creating a sexually intimidating, hostile or offensive working or academic environment. The definition quoted above does not apply to the conduct alleged against Respondent, though a later section of the Policy, labeled “Instructor-Student Relationships,” appears to broaden the definition, as indicated in the relevant portion quoted below: This rule applies to instructor-student relationships. In the instructor-student context, the term sexual harassment has a broader impact. The fundamental element of such behavior is the inappropriate personal attention, including romantic and sexual relationships with a student by an instructor or staff member who is in a position to determine a student’s grade or otherwise affects the student’s academic advancement. Because the instructor-student relationship is one of professional and client, the above inappropriate behavior is unacceptable in a college; it is a form of unprofessional behavior which seriously undermines the atmosphere of trust essential to the academic setting. Both President Kuttler and Dr. Roberts testified that, in their opinion, the language quoted in the preceding paragraph broadened the definition of “sexual harassment” as applied to the instructor-student relationship, such that any form of romantic or sexual relationship between an instructor and a student constitutes sexual harassment, at least when the instructor is in a position to determine the student’s grade or otherwise affect the student’s academic advancement. The Policy also forbids retaliation against any person who has filed a complaint or complained about sexual harassment. No evidence was presented indicating that Respondent took any retaliatory action against Ms. Zemola. The Policy states that discipline for violation of its provisions “will depend on the nature of the incident,” but that the range of such discipline is from admonishment to dismissal. The February 8, 1996, memorandum goes on to state that, because of the seriousness of the alleged violations and because a violation of the Policy could lead to a recommendation of suspension or dismissal, Dr. Roberts was scheduling a meeting on February 13 with Ms. Williams, Martha Adkins, who was the Assistant Director of Business Technologies, and Nevis Herrington, Vice President of Human Resources, for the purpose of permitting Respondent to tell his side of the story in full. Ms. Williams was the only witness who testified as to the February 13 meeting, but her recollection was unclear as to the details of this meeting as distinguished from others involving Dr. Roberts, Respondent, and her. She recalled generally that Respondent was made aware of the Policy and potential penalties for violation thereof. Some delay ensued in the disciplinary process, because Dr. Roberts and Ms. Williams were waiting for the affidavit from Ms. Zemola, which was not forthcoming as spring turned into summer of 1996. At length, Dr. Roberts issued a memorandum to Respondent, dated August 13, 1996, and titled “Reprimand.” In the memorandum of reprimand, Dr. Roberts found that the facts to which Respondent had already admitted, characterized by Dr. Roberts as “a romantic relationship, including sexual relations, following the time that the student was a student in your class,” were sufficient to warrant a written admonishment. The memorandum stated that there were certain mitigating factors that caused Dr. Roberts not to recommend suspension or dismissal: that the student’s initiating the contact led to the relationship; that, according to Respondent, no romantic relationship or sexual relationship occurred while Ms. Zemola was Respondent’s student; and that Ms. Zemola had thus far refused or failed to provide her version of the facts in writing. However, Dr. Roberts’ memorandum went on to state: On the other hand, if the student had confirmed in an Affidavit what she originally advised us took place, I do not believe that I would have any choice but to consider recommending dismissal since such conduct would be a gross and direct violation of the College’s Sexual Harassment Policy. Such conduct would not only be in violation of the College’s Sexual Harassment Rule and Procedure but it would be unprofessional, immoral and constitute misconduct in office. Should confirming or additional information come forward to support the verbal statements we were given by the student and her husband, further consideration of an additional discipline including up to dismissal will be necessary. (Emphasis added.) The August 13, 1996, memorandum placed dispositive emphasis on the timing of the romantic and/or sexual relationship between Respondent and Ms. Zemola. As of August 13, Dr. Roberts accepted Respondent’s version of the facts, i.e., that the romantic and sexual aspects of the relationship occurred after Ms. Zemola was a student in Respondent’s class. Dr. Roberts found that this version, while contrary to the spirit of the Policy, and constituting misconduct in office and immorality, merited only a written admonishment. Dr. Roberts testified that “the power relationship is there whether the student is a student in that individual’s class or not,” somewhat contradicting the distinction he drew in his memorandum regarding the timing of the affair and its impact on the proposed discipline. Dr. Roberts testified that the admonishment was based on his judgment that Respondent’s relationship with the student violated the Policy “in terms of creating a threatening or offensive or intimidating environment.” He testified that Ms. Zemola had clearly complained that she felt intimidated and reluctant to take classes. Dr. Roberts’ conclusion in this regard was based on Ms. Zemola’s subjective apprehensions. No evidence was produced, at any point in these proceedings, that Respondent engaged in any behavior that could have caused Ms. Zemola to feel “intimidated” or “reluctant to take classes.” Ms. Zemola testified that she heard students at other campuses discussing the incident, and that an instructor in one of her classes talked about the case in front of the class. She believed that Respondent was the source of these persons’ knowledge of the situation. Ms. Zemola offered nothing more than her suspicions in this regard, and Respondent resolutely and credibly denied having discussed the affair with students or fellow instructors. In fact, the weight of the credible evidence leads to the finding that John Zemola was the likely source of any campus gossip regarding the incident. On at least one occasion, Mr. Zemola disrupted a College class by writing accusations against Respondent on the blackboard. Dr. Roberts’ August 13 reprimand memorandum left open the possibility that further disciplinary measures might be taken, should Ms. Zemola come forward with a sworn affidavit confirming her version of the timing of the romantic and sexual aspects, i.e., that they occurred while she was a student in Respondent’s class. In a sworn affidavit dated October 24, 1996, Ms. Zemola attested that, while she was a student in Respondent’s classes during Session II, 1994-95, they had an affair which consisted of “a great amount of time talking, and some time kissing, hugging, and holding hands.” She attested that during Session III, 1994- 95, while she was still a student in Respondent’s class, Respondent told her that “if our affair did not go any further, then it had to end.” She attested that at this time she was constantly fighting suicidal thoughts, and believed that if she lost Respondent, the only person she could talk to, she might no longer be able to fight those thoughts. Therefore, during Session III, 1994-95, she engaged in a single sexual encounter with Respondent. By memorandum dated December 11, 1996, Dr. Roberts informed Respondent that the affidavit has been filed and offered Respondent an opportunity to meet with Dr. Roberts and two other officials “to respond to the allegations and share your side of the story.” There is no record evidence that this meeting ever took place. On May 8, 1997, the College filed the Petition. The essential allegation was framed as follows: The faculty member entertained romantic and sexual relations with a student while that student was in the faculty member’s class. This relationship continued after the student was no longer in the faculty member’s class for a period of several months while the student continued her course of education at the College. Such conduct therefore occurred during a time when the faculty member could influence and affect the student’s academic advancement. In addition to the allegations regarding Respondent’s romantic and/or sexual relationship with Ms. Zemola, the Petition alleged: The faculty member thereafter encouraged students of his to pressure the woman with whom he had had the romantic relationship to refrain from stating charges against him in order that it not jeopardize the faculty member’s career. Petitioner offered no evidence to support this allegation, and it is thus assumed that it has been dismissed. The remaining factual allegations contained in the Petition are for the most part conclusions alleged to arise from Respondent’s conduct: Said conduct seriously undermines the atmosphere of trust essential to the student/instructor relationship, and further is inconsistent with the standards of public conscience and good morals, and was sufficiently notorious so as to disgrace the faculty member’s profession and impair the faculty member’s service to the community and to students. The faculty member’s conduct had serious adverse consequences upon the student, the student’s relationship with her husband, as well as adverse impact on other students, faculty, staff, and upon members of the community, impairing his effectiveness. The effect of the faculty member’s aforesaid conduct was the creation of an intimidating, hostile and/or offensive educational environment for the student and others. No evidence was presented of any “adverse consequences” to other students, faculty, staff, or members of the community, caused by Respondent’s actions. None of the College administrators who testified could recall receiving any complaints regarding Respondent. Dr. Roberts recalled an inquiry from the campus newspaper, but testified that no article ever ran in that or any other newspaper regarding this situation. Ms. Zemola testified that she heard some gossip around the campus, though none of it mentioned the parties by name. Such talk naturally affected Ms. Zemola, but could not be said to have had any other adverse impact. Ms. Zemola’s relationship with her husband was plainly affected by this incident. However, testimony from both Respondent and Ms. Zemola indicated that neither of their marriages was happy at the outset of their relationship. In fact, their testimony indicated that mutual unhappiness in their marriages was one of the main reasons they were drawn together in the first place. No evidence was presented to demonstrate that Ms. Zemola’s grades or academic advancement were in any way compromised by her affair with Respondent. Ms. Zemola received grades of “A” in both classes she took from Respondent. Both Ms. Zemola and Respondent testified that these grades were earned by Ms. Zemola based entirely on her work in those classes. Respondent has continued to work as an instructor at the College since the affair and subsequent disciplinary proceedings. His work has been performed competently and completely without incident. The episodes of disruption and/or diminished effectiveness cited by the College’s administrators were in fact caused by John Zemola, not by Respondent. When asked for evidence that Respondent’s effectiveness as a teacher has been diminished as a result of the relationship, President Kuttler related an incident in which John Zemola disrupted a class to inform the students about Respondent’s situation, and another incident in which John Zemola harassed Respondent at his home, telling Respondent’s neighbors about the incident. President Kuttler concluded that Respondent’s effectiveness was diminished by the fact that it became known on the campus that there was a teacher/student sexual relationship. However, all the credible record evidence indicates no one involved in the incident or the subsequent disciplinary proceedings other than John Zemola ever publicly disclosed the relationship. Respondent cannot fairly be blamed for the actions of Mr. Zemola in publicizing the incident. Several of Respondent’s colleagues testified to attest to Respondent’s outstanding ability in the classroom. All opined, based on their experience as instructors at the College and their knowledge of Respondent’s character and abilities, that Respondent could continue to perform as an effective instructor at the College. No evidence was presented to demonstrate that Respondent’s actions created “an intimidating, hostile and/or offensive educational environment for the student and others.” Respondent acknowledged the impropriety of his actions, and the impact they have had on his personal life, but testified that it has had no impact on his professional life.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order finding that Respondent violated the “Instructor-Student Relationships” portion of the College’s Sexual Harassment Policy, and suspending Respondent from his position at the College for a period not to exceed one Session. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: Maria N. Sorolis, Esquire Shannon Bream, Esquire Allen, Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 Mark Herdman, Esquire Herdman and Sakellarides 2595 Tampa Road, Suite J Tampa, Florida 34684 Charles L. Roberts, Provost St. Petersburg Junior College St. Petersburg/Gibbs Campus Office of the Provost St. Petersburg, Florida 33733 District Board of Trustees St. Petersburg Junior College Post Office Box 13489 St. Petersburg, Florida 33733 Carl M. Kuttler, Jr., President St. Petersburg Junior College Post Office Box 13489 St. Petersburg, Florida 33733
Findings Of Fact Respondent holds Florida teaching certificate 310395 covering the areas of biology and science. During the 1985-1986 school year, he taught ecology and science courses at Winter Park High School in the Orange County School District until he was relieved from duty on March 13, 1986, as a result of an investigation into the incidents and behavior described below. During the school day, Respondent repeatedly harassed the female students with sexual remarks, attempts at sexual humor, and requests for sexual favors and intimacies. The sexual harassment so permeated the classroom that Respondent was completely unable to discharge his professional teaching responsibilities. Faye Zentner was a senior at Winter Park High School during the 1985- 1986 school year. Notwithstanding the fact that Respondent knew that she was a student, he repeatedly asked her to go with him on a date, followed by dinner and bed. Unsolicited, he gave her his home telephone number and told her to call him. He frequently remarked on her clothing, advising her that she should not wear such nice clothes. He often communicated by notes that he would show her and then tear up. Ruth Evans was a senior at Winter Park High School during the 1985-1986 school year. She was in Respondent's science class. Respondent repeatedly complimented her on her dress. He would intentionally drop a pencil and watch her while she picked it up. At different times, Respondent told her that he "wanted her body" and thought that she had a "nice ass." He also told her that he wanted to "get between her legs." He asked her to go out with him and then to his place. One afternoon when Ms. Evans asked to leave class 10 minutes early for a school-sponsored softball game, Respondent's response was, "If you're not going to do anything for me, why should I do anything for you?" Kristen Fischer was a senior at Winter Park High school during the 1985-1986 school year. She was in Respondent's ecology class. Looking at her breasts and body while speaking, Respondent would frequently tell Ms. Fischer that he liked what he saw, including her tight jeans. As with the other female students, Respondent asked Ms. Fischer to go out with him and have a drink. The testimony of the remaining female students reiterated the above testimony and established a pattern of sexual harassment on the part of Respondent. Respondent summoned Juliana Gomes from the classroom and, in the hall, commented on her appearance and asked her out on dates. Ms. Gomes finally began reporting to school late in order to avoid her first-period class with Respondent. Respondent told jokes involving female body parts, such as the vagina, to Laurie Kreitner, another student. When she would not listen to these jokes privately at his desk, Respondent would tell them publicly to the entire class. Respondent regularly asked Sheila Buchanan, another of his students, what she was doing on that Friday night and where she would be. At spring break, he found out where she and her girlfriends would be staying at the beach and gave them his hotel room and telephone numbers with an invitation to call him. During the entire term in ecology, Respondent administered only one test and a couple of quizzes. Otherwise, the students and Respondent sat around and talked about movies and matters unrelated to the subject of the class. On more than one occasion, Respondent admitted that his grades were a reflection of whom he liked and whom he did not like. Respondent even allowed Ms. Buchanan to grade half of the finals, and she gave good grades to her friends.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent's teaching certificate be permanently revoked. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 J. David Holder, Esquire Rigsby & Holder Suite 200 1408 North Piedmont Way Tallahassee, Florida 32312 Reginald Crooms 617 South Delaney Avenue, No. 19 Orlando, Florida 32801
Findings Of Fact Clarence Dixon received a Bachelor of Science degree with academic honors from Bethune-Cookman College. He was active in athletics and was rated "All-American" in football. He was employed by Piper High School for the 1980- 81 school year in his first teaching position. He was hired to teach physical education, and was encouraged by the principal of Piper High School to take an active part in the black community. Sandra Brown is employed at Piper High School as a security specialist. She met Dixon through their work association and asked Dixon to counsel her son, as she knew he respected Dixon. Mrs. Brown related several conversations wherein Dixon made sexual advances to her. Mrs. Brown was also involved in the initial school investigation of Dixon's alleged sexual improprieties with Piper High School students; Sharon Cooper is a 15-year-old female student at Piper High School. She had been upset over rumors that involved her reputation, and was considering leaving school over the matter. Dixon became aware of her problem end counseled her to remain in school and ignore the rumors. Carl Nadler, a 16-year-old student at Piper High School, overheard Cooper tell Dixon that, "All the guys say I suck dicks and fuck." This was the statement attributed to Dixon in Count 2 of the Petition. However, it appears that Dixon did not use these words, or at least did not use them in a sexually suggestive context. Lesia McGee is a 17-year-old student at Piper High School. She did not testify at the hearing due to illness, but the parties agreed to allow her deposition to be admitted as evidence associated with Count 5 of the Petition. Her testimony establishes that Dixon told her, "If you wear those purple pants again, I'm going to tongue you to death." Any doubt regarding the sexual implication of this statement was removed by remarks Dixon made to McGee on other occasions to the effect that she had a good figure and would she be enough of a lady not to tell anyone if she and Dixon were to make love. McGee readily admitted that Sandra Brown wanted her to exaggerate her complaint, but she refused. Her testimony indicated no animosity toward Dixon nor influence by Sandra Brown. Freddie Jones is a student at Piper High School. He informed another student, Sandra Cunningham, that Dixon had asked Jones to spread a rumor about her. Jones recanted his initial statement to investigators at the prehearing deposition. He returned to the allegation at the hearing, explaining that he had tried to help Dixon by lying at the deposition, but came to believe it was more important to tell the truth. Jones' testimony lacks credibility because of its inconsistency with his earlier sworn statement. Valynda Johnson is an eleventh grade student at Piper High School. She and Dixon had frequent contacts even though she was not his student. Several times Dixon sent her passes to leave class in order to meet him on the athletic field. Dixon concedes that he once sought to have her excused from class to do some typing for him. On one occasion, Dixon invited Johnson to a basketball game with him and on another to meet him at a convenience store. On two occasions, Dixon asked Johnson, "When are you going to let me do that?" or words of similar import. When she asked what he meant, he replied, "You know what I'm talking about." Johnson was unsure of Dixon's intentions, but believed that Dixon was probably seeking sexual relations with her. Although Johnson was confused on some of the details of her testimony, she was a generally credible witness, showing no animosity toward Dixon or influence by Sandra Brown. Rene Snelling is an 18-year-old student at Piper High School. Dixon and Snelling became friendly, and Dixon made periodic comments to her about her figure and potential for a modeling career. They also discussed a trip to visit a college in Kentucky. Although Dixon took only male students on this trip, he did bring back souvenir T-shirts for Snelling and several other students. Dixon also phoned Snelling at her home and once told her he had a gold chain for her. The comment on which Count 8 is based involved Dixon's question to Snelling, "If we ever had sex would you [Snelling] be ladylike enough not to tell anyone?" or words of similar meaning. This conversation took place in the school library where Snelling was working on a class assignment. Dixon denies making this statement but recalls that when he asked to sit beside her in the library she replied that a nice-looking man like Dixon could sit next to her. Although Snelling was unsure of some of the details of her contacts with Dixon, she was a generally credible witness and showed no animosity toward Dixon or influence by Sandra Brown. Hooker T. Robinson is a 18-year-old student at Piper High School. He overheard Rene Snelling tell another student that if Coach Dixon were not so dedicated to his wife she would fuck him. Robinson was called by Respondent apparently to discredit Snelling's testimony. However, Robinson's testimony indicates that a sexual attraction was developing between Dixon and Snelling which is consistent with the charges contained in Count 8. Darryl Allen is a 15-year-old student at Piper High School. He overheard Chanita Austin, Rene Snelling and Valynda Johnson discussing Dixon in early January. He heard one of them say, "He [Dixon] is acting so high class and doesn't speak anymore," or words of similar import. Darwin Taylor is a 15-year-old student at Piper High School. He overheard a discussion between Sandra Brown and Rene Snelling about February wherein Mrs. Brown stated to Snelling, "Don't worry, we've got him where we want him." Taylor further overheard Mrs. Brown advise Snelling to tell the judge that Dixon gave her a gold chain and tried to touch her and have sex with her. This testimony and that of students Lesia McGee and Chanita Austin (deposition) establishes that Mrs. Brown either intentionally or in the zeal of her investigation encouraged exaggerations. However, the students testifying in this proceeding recognized this and were net swayed by Mrs. Brown's encouragement. The testimony of Piper High School students Alvin Williams, Eugene Wimbs and Ernest Merrell is not material and is accorded no evidentiary weight herein. The depositions of Piper High School students Sandra Anderson, Chanita Austin and Jackie Dawson do not contain evidence relevant to the charges herein and are likewise accorded no weight. The testimony of Anthony Ash, Broward County CTA representative, and Andrew Thomas of the Broward County School System, involve procedural matters not directly relevant to factual questions at issue here. The Respondent denies making the statements and other improper conduct attributed to him by the witnesses. He points out that the complaining witnesses are all from the same neighborhood and are all below-average students. He theorizes that they were confused over factual matters and did not appreciate the damage their statements could have upon him, and that they were unduly influenced by Sandra Brown. The testimony of these Piper High School students, with the exception of Freddie Jones who changed his testimony, was generally credible. They demonstrated an appreciation for the gravity of their complaints and the potential impact on Dixon's career. They did not show any resentment toward Dixon, but rather viewed him as a friend or former friend. The witnesses were encouraged to come forward by Sandra Brown. As noted above, Mrs. Brown's investigative techniques were lacking in objectivity. However, there was no indication that any witness committed perjury as a result of improper influence by Mrs. Brown. Although it was apparent that the students did discuss this case among themselves, there was no indication of any conspiracy against Dixon.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts 3 and 4 of the Petition be dismissed. It is further RECOMMENDED that Respondent Clarence Dixon be found not guilty of the charges contained in Counts 1, 2 and 6 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be found guilty of the charges contained in Counts 5, 7 and 8 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be discharged from employment as a teacher by the Petitioner School Board of Broward County. DONE and ENTERED this 6th day of August, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 6th day of August, 1981. COPIES FURNISHED: Charles Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606
The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1992.
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
Findings Of Fact During times pertinent to this consolidated proceeding, the Respondent, Eugene Lamar Moore, has held teacher's certificate number 271828 issued by the State of Florida Department of Education for the subject areas of English and Bible studies. The Respondent was employed as a teacher by the Escambia County School District at Washington High School during times pertinent to the facts in this proceeding. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 231, Florida Statutes, as they relate to licensure of teachers and regulation - and enforcement of the practice standards which teachers are required to observe in the practice of that profession in the State of Florida. The Petitioner, Escambia County School Board, is a local government agency charged, as pertinent hereto, with regulating the practice and practice standards of teachers and professional conduct of teachers in its employ in the Escambia County school system. The Respondent was employed at times pertinent hereto by the Escambia County school system as a teacher at the Washington High School. He began teaching in the County under an annual contract of employment in 1970. At the conclusion of the 1973-74 school year, the Respondent was awarded a continuing contract of employment by the County School Board and has been employed by Escambia County as a continuing contract teacher ever since. On May 27, 1985, during a change of classes in his classroom, at a time when other students were present, the Respondent kissed student Rebecca Cleveland on the cheek. He had known her for approximately one year and eight months at the time the incident occurred. He felt he knew and understood her personality well enough to have no fear that lightheartedly kissing her on the cheek would embarrass her or offend her. It was not his intention to derive personal benefit or gratification by hugging or kissing Rebecca Cleveland on the cheek nor did he intend to offend, embarrass or expose her to disparagement in any way. Rebecca Cleveland acknowledged that the Respondent had never attempted to kiss her before that day and also acknowledged that she did not really believe Respondent intended to hurt her or to intentionally embarrass her. Michelle Clawson was another female student at Washington High School and contended in her testimony that the Respondent put his arm around her, attempted to kiss her and attempted to "french kiss" her. Indeed, the Respondent had put his arm around Michelle Clawson on a number of occasions for the purpose of generally encouraging her and encouraging her to take tests, but had not attempted to kiss her on any occasion. Ms. Clawson additionally contended that Mr. Moore was trying to maintain a good personal relationship with her by giving her undeserved high grades and stated that she asked several boys in the class to stay with her in Mr. Moore's room after class on the day he allegedly attempted to kiss her (presumably for protection). She also stated that Mr. Moore requested that she go to a football game with him, presumably as his date. This testimony is not credited, however, for a number of reasons. Firstly, Ms. Clawson's claim that Respondent tried to "french kiss" her was a recent addition to previous and different versions of the alleged kissing incident related in her previous statements. Concerning her charge that he was giving her undeserved good grades, it was established unequivocally that indeed Mr. Moore had actually given her an "F" during the grading period in question. Concerning her staying in his class after others had left and asking several boys to remain with her, Ms. Clawson was unable to explain why she remained in Mr. Moore's room in the first place, especially after the "boys" supposedly informed her that they could not stay with her. Concerning the alleged "football game date," she conceded that the entire class was present when the conversation occurred. It is very implausible that Mr. Moore would have asked Ms. Clawson for a date, had he been inclined to do so at all, in the presence of any other students, especially not the entire class. If such an incident had occurred it seems likely that there would have been at least one other witness to verify the nature of the conversation in question. It was also established by independent, uncontradicted proof that the Respondent was in charge of arranging buses and other logistics for football game trips and other school trips and served as a chaperone on some occasions for such events. The Respondent's version of this conversation to the effect that, if it occurred, he was merely trying to determine if Michelle Clawson would be able to attend the football game and offering to obtain permission for her from her parents, is accepted over Ms. Clawson's version. Ms. Georgette Floyd is another ninth grade English teacher at Washington High School, like Respondent. Michelle Clawson had been in Ms. Floyd's class the year previous to the one when the alleged incident supposedly occurred in the Respondent's class. Ms. Clawson did not pass Ms. Floyd's freshman English class and was required to repeat the course. She was thus assigned to repeat freshman English in the Respondent's class the year after she was in Ms. Floyd's class. Prior to the time Respondent had Michelle Clawson enter his class, Ms. Floyd warned him that Ms. Clawson might present some problems. Ms. Floyd had found that Ms. Clawson, on occasion, would attempt to provocatively expose parts of her body by sitting in a suggestive or provocative fashion and had been known to spread false comment about teachers, particularly Ms. Floyd. In summary, it is concluded that Michelle Clawson's testimony is not credible and is not credited herein. Her version of the events is simply not plausible in the face of the Respondent's and Ms. Floyd's testimony; further, she was shown to have a motive for giving an untruthful version of the events in question, to wit, her poor academic performance and failing grades in Respondent's and Ms. Floyd's classes. Ms. Floyd's testimony that Ms. Clawson had previously made a false accusation against her was uncontradicted. 1/ Concerning the charges about the Respondent's alleged loss of effectiveness in the school system, Mr. Sherman Robinson, the principal of Washington High School testified that he did not believe Mr. Moore was any longer an effective teacher at Washington High School. Mr. Robinson based this opinion on his belief that the Respondent's effectiveness was diminished as a result of the Rebecca Cleveland incident of May 1985. He conceded, however, that the Respondent had taught school at Washington High School for the entire following 1985-86 school year and indeed for a portion of the 1986-87 school year. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident became known concerning Rebecca Cleveland. That evaluation covers areas involving professional responsibility (encompassing the types of conduct in question) as well as academic performance. The Respondent's evaluation for the 1984-85 school year demonstrates that he received the highest possible score in four out of five sub-categories. He received the next highest score in the remaining sub-categories. No part of that evaluation was unsatisfactory. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident concerning Rebecca Cleveland became known. The Respondent's 1985-86 evaluation demonstrated that he received the highest possible score on that part of the evaluation that deals with professionalism or professional responsibility. All of the Respondent's teaching, after the Rebecca Cleveland incident occurred, was at Washington High School, and he received all satisfactory or higher evaluations on each category for that period of time after the Rebecca Cleveland incident.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Education Practices Commission dismissing the complaint by the Department of Education against the Respondent, Eugene Lamar Moore, in its entirety. It is Further RECOMMENDED that the Petition for Dismissal filed by the Superintendent of Schools for Escambia County should be denied and that the Respondent, Eugene Lamar Moore, should be reinstated to his position of employment as a continuing contract teacher with full back pay from the date of suspension. DONE and ORDERED this 12th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987.
The Issue The issue is whether Petitioner should be dismissed from his employment as a tenured professor at Florida A & M University as proposed in a termination letter dated October 17, 2003, on the grounds that he violated Rules 6C3-10.103 and 6C3-10.230, Florida Administrative Code.
Findings Of Fact Petitioner, Dr. Donald Allen, was hired by Respondent, Florida A & M University, as an associate professor in 1993. Three to four years later, Petitioner attained the status of tenured professor, which he held until his termination from employment on September 18, 2003. Petitioner is also known as Dr. Daudi Ajani ya Azibo. While employed by Respondent, Petitioner authored numerous scholarly articles and books. Dr. Allen was recognized by the International Association of Black Psychologists as a distinguished psychologist. Petitioner has also been recognized by the Journal of Black Psychology for his work and, as a result, Respondent’s Psychology Department has been regarded as the top department in Black Psychology. The Journal of Black Psychology has devoted two issues solely to Petitioner’s work, a heretofore unprecedented move. During the fall semester of 2002, Petitioner taught a course for Respondent in Black Psychology. The class held approximately 100 students, one of whom was a woman named Brandi McSwain. Ms. McSwain received a passing grade on her first test in Petitioner’s class, but received a failing grade on her second test when she and three other students were caught cheating on the test. Petitioner informed the four students who had cheated on the test that they would have to pass the final two tests in the class in order to receive a passing grade. Each of the four students, except Ms. McSwain, passed the final two tests. Ms. McSwain approached Petitioner after class on the Thursday before Thanksgiving 2002, to discuss her failing grade on the second test while Dr. Allen was conducting office hours in an adjacent classroom. Ms. McSwain asked Petitioner if she could earn extra credit to make up for her failing grade. She offered to “do anything” in order to improve her test score. Dr. Allen asked Ms. McSwain to write her telephone number on the test paper so that he could contact her about her failing grade. Requesting a student’s telephone number was something Petitioner routinely did when he had too many students to handle during office hours. On November 23, 2002, Petitioner called Ms. McSwain to discuss her failing test score. Ms. McSwain offered to write a research paper or perform another assignment in order to earn credit for the failing grade. Petitioner informed Ms. McSwain that she would have to take the remaining two tests, along with the other three students who had cheated, then he would work with her to improve her score on the test on which she had been caught cheating. During the telephone conversation, a discussion took place between Dr. Allen and Ms. McSwain concerning trading sexual favors for a better grade on the failed test. Petitioner claims that Ms. McSwain initiated the discussion of exchanging sex for an “A” on the test. Ms. McSwain claims that Dr. Allen initiated the conversation of the exchange of sex for a good grade. Petitioner told Ms. McSwain that he did not trade sex for grades. Ms. McSwain told Petitioner that she just wanted to have sexual relations with him, not in exchange for grades, but because she had a “crush” on him. Petitioner believed that Ms. McSwain was attempting to exchange sexual relations for an “A” grade on the test she failed, and he repeatedly told her that he would not exchange sex for an improved grade. He stated the following: “Get the hell out of here. You’ve got to be kidding. There is no way you want me on you. I’m short, fat, bald, and 50.” Ms. McSwain convinced Petitioner that she wanted to have sex with him regardless of the impact on her grade. She said the sex she was offering was not about grades. “No sir, I just want to have sex with you.” Ms. McSwain purchased a tape recorder at a local Wal-Mart so that she could tape the conversations she had with Petitioner concerning their proposed sexual liaison. Petitioner and Ms. McSwain exchanged several telephone calls concerning arranging a sexual liaison. They finally agreed to meet at the Albertson’s grocery store on North Monroe Street in Tallahassee, then to proceed to a motel down the street. Petitioner and Ms. McSwain met at the Albertson’s, then proceeded to the Super 8 Motel down the street, arriving around midnight. Petitioner proceeded to rent the room in his own name, paying cash, while Ms. McSwain waited in her car. Petitioner came out to Ms. McSwain’s car and told her the room number, then he went up to the motel room. Ms. McSwain joined him in the room a few minutes later. Upon entering the room, and on several occasions when she was in the room with Dr. Allen, Ms. McSwain asked if she was going to get an “A” if she performed various sexual acts with him. Petitioner and Ms. McSwain discussed the sexual acts that he wanted her to perform and she repeatedly asked him if she was going to get her “A” if she performed one or another of the acts. Dr. Allen repeatedly told Ms. McSwain that this was not about grades and that he refused to trade sex for grades. Ms. McSwain testified that she spent no more than five minutes in the motel room with Petitioner, yet the tape recording she made while she was with Petitioner lasted approximately 30 minutes. Petitioner and Ms. McSwain caressed and discussed explicitly the sexual acts in which they were going to engage. Ms. McSwain began to dance for Petitioner and, as she began to remove her clothes, asked if he was going to give her an “A” for what she was doing or, presumably, for what she was about to do with him. Petitioner continued to tell her that “there is no grade in this.” At some point in the motel room, before any actual sexual intercourse took place, Ms. McSwain removed the tape recorder from her purse and said to Petitioner “I got you!” As she left the room with her tape recorder in hand, Ms. McSwain told Petitioner that he had better give her an “A” or she was going to turn over the tape to his wife and the people at Florida A & M. Dr. Allen did not dispute meeting Ms. McSwain at the motel, or that they agreed to engage in sex. Petitioner asserts a consensual sexual relationship and Ms. McSwain asserts a “sex for grades” scenario. The audiotape of the meeting at the hotel is largely inaudible, although enough of it is audible to make the following conclusions: Approximately 10 minutes into the tape, Ms. Mcswain states she is trying to get an “A.” Approximately 12 minutes into the tape, Dr. Allen says, “not related to grade”; Ms. McSwain responds that she is trying to get a good grade. Approximately 13 minutes into the tape, Dr. Allen states he does not swap grades for sex. Approximately 14-15 minutes into the tape, Ms. McSwain states that she is not having sex unless she gets a grade. Approximately 15 minutes into the tape, Ms. McSwain states she wants an “A,” then asks “I’ll get an ‘A’ if I have sex?” Approximately 17 minutes into the tape, Ms. McSwain states, “if I don’t get an ‘A,’ I’m not going to do it.” Approximately 18-19 minutes into the tape, she asks for an incomplete and states that she is not going to allow this class to ruin her life. Approximately 22-23 minutes into the tape, Ms. McSwain says, “I want an ‘A,’ and no one hears this if I get it. I don’t want to hurt anyone.” Approximately 31 minutes into the tape, Ms. McSwain leaves the motel room. Petitioner has had no contact with Ms. McSwain since November 24, 2002. Ms. McSwain did not return to the Black Psychology class for the remainder of the semester following their encounter at the motel. Ms. McSwain reported the incident with Petitioner to the Office of Equal Opportunity Programs on November 27, 2002, and met with the Director, Ms. Carrie Gavin. Ms. Gavin advised Ms. McSwain of Respondent’s rules and regulations and provided her with a form for filing a formal complaint against Petitioner. Ms. Gavin met with Ms. McSwain again on December 4, 2002, at which time she reviewed the audiotape made by Ms. McSwain of the meeting in the motel room. Ms. McSwain did not file a formal complaint at that time. Petitioner completed his grades on December 13 or 14 and submitted them to Respondent on or before December 16, 2002. On December 17, 2002, Ms. McSwain filed a complaint of sexual harassment against Petitioner, after Petitioner’s grades had been posted. Ms. Gavin notified Petitioner of the filing of the formal complaint by Ms. McSwain. Petitioner filed a written response to the allegations of the formal complaint. Ms. Gavin conducted an investigation into the allegations of Ms. McSwain’s complaint and concluded that “there was merit to the complaint.” The report generated by Ms. Gavin recommended that Petitioner should be terminated from employment because of prior disciplinary action pursuant to Rule 6C3-10.103, Florida Administrative Code. The report found that Petitioner had engaged in quid pro quo sexual harassment and had created a hostile environment with respect to Ms. McSwain. The basis of these charges was that “a sexual relationship was discussed during the point of dealing with grades” in discussion between a professor and a student. The recommendations from Ms. Gavin were reviewed by Respondent’s President, Dr. Fred Gainous, who issued a letter upholding the termination of Petitioner pursuant to Rules 6C3-10.103 and 10-230, Florida Administrative Code. Ms. Gavin indicated that over the last five years, five or six informal sexual harassment complaints and 15 or 16 formal sexual harassment complaints had been filed with her office. Of the formal complaints, eight had been substantiated and resulted in disciplinary action being taken. Respondent believes in the principle of progressive discipline. Disciplinary actions range from a written reprimand to a dismissal. Any employee with a second substantiated violation of the discrimination rule receives a recommendation of dismissal. Dr. Frederick Humphries, Respondent’s former president, issued a written reprimand to Petitioner for retaliation on April 20, 1999. Petitioner had retaliated against a group of students by providing a survey to “those members of his class who had not filed a sexual harassment complaint against him.” Also contained in that letter was language stating that any further infractions could lead to termination. Dr. Larry Rivers, Dean of Respondent’s College of Arts and Sciences, was informed of Ms. McSwain’s sexual harassment complaint by Dr. John Chambers, his assistant dean at the time, who informed him that Ms. McSwain did not feel comfortable returning to Petitioner’s class. Dr. Rivers instructed Mr. Chambers to make alternative arrangements for Ms. McSwain to complete the class. Petitioner issued Ms. McSwain a grade of “I” (incomplete) in the Black Psychology class. Ms. McSwain enrolled in one class during the summer semester 2003, but failed to complete it. She withdrew from the University in July 2002. Dr. Rivers has taught both undergraduate and graduate level courses for Respondent for approximately 25 years. In his role as a department chair and as dean, he has discussed his belief that it is always unprofessional for a professor to have any type of relationship, other than an academic one, with a student. The teacher-student relationship is one based upon power, with the teacher wielding the power. Respondent has no rule or regulation that prevents a faculty member from having a consensual relationship with an adult (greater than age 18) student.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the dismissal of Dr. Allen from his position at Florida A & M University. DONE AND ENTERED this 4th day of June, 2004, 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 4th day of June, 2004. COPIES FURNISHED: H. B. Stivers, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Linda Barge-Miles, Esquire Florida A & M University Office of the General Counsel Lee Hall, Room 300 Tallahassee, Florida 32399-3100 Avery D. McKnight, Acting General Counsel Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100
