00-000664 Florida A &Amp; M University And Board Of Regents vs. Calvin C. Miles, Jr. Status: Closed Recommended Order on Tuesday, August 29, 2000.

Summary: Respondent`s conduct equated to sexual harassment within meaning of rule and therefore justified his termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A & M UNIVERSITY and )

BOARD OF REGENTS, )

)

Petitioners, )

)

vs. ) Case No. 00-0664

)

CALVIN C. MILES, JR., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on May 31 and June 1, 2000, in Tallahassee, Florida, before

Donald R. Alexander, the assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioners: Bishop C. Holifield, General Counsel

Avery D. McKnight, Esquire

Ruth N. Selfridge, Esquire

Florida A & M University

Suite 300, Lee Hall

Tallahassee, Florida 32307-3100

For Respondent: Calvin C. Miles, Jr., pro se

501 Blairstone Road, Apartment 123

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Respondent should be dismissed from his

employment with Florida A & M University, as proposed in a

termination letter dated August 19, 1999.

PRELIMINARY STATEMENT

This matter began on August 19, 1999, when Petitioner,

Florida A & M University, a state university under the

supervision and control of Petitioner, Board of Regents, issued a

"Final Decision" in the form of a letter advising Respondent,

Calvin C. Miles, Jr., that he was being dismissed from his

position with Florida A & M University "for violating University

Rule 6C3-10.103, Florida Administrative Code." Even though the

letter failed to offer Respondent a point of entry to contest

that decision, through counsel, Respondent later requested a

hearing on January 18, 2000. The matter was referred by Florida

A & M University to the Division of Administrative Hearings on

February 8, 2000, with a request that an Administrative Law Judge

conduct a formal hearing.

By Notice of Hearing dated March 16, 2000, a final hearing

was scheduled on May 31 through June 2, 2000, in Tallahassee,

Florida. On May 1, 2000, the case was transferred from

Administrative Law Judge Larry J. Sartin to the undersigned.

Two Motions to Dismiss filed by Respondent just prior to the

hearing were denied by Orders dated May 25 and 26, 2000. At the

final hearing, Petitioners presented the testimony of Deanna

McKinley, Jackeline Pou, Symphony Parson, Crystal Jones, and

Charles Slaton, present or former students at Florida A & M

University; Carrie Gavin, Director of the Office of Equal

Opportunity Programs; Robert M. Ruggles, Dean of the School of

Journalism, Media, and Graphic Arts; Dr. James Hawkins, Director

of the Division of Journalism; and Cynthia Fields, a radio

station employee. Also, it offered Petitioner's Exhibits 1-12,

which were received in evidence. Respondent testified on his own

behalf and offered Respondent's Exhibits 1-5. All exhibits were

received in evidence except Exhibit 1.

The Transcript of the hearing (three volumes) was filed on

June 15, 2000. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended to

forty days after the filing of the Transcript. Timely filings

were made by the parties on July 25, 2000, and they have been

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, including the stipulation of

the parties, the following findings of fact are determined:

1. In this employee termination case, Petitioner, Florida

A & M University (FAMU), seeks to terminate the employment of

Respondent, Calvin C. Miles, Jr., on the ground that he sexually

harassed three female students and retaliated against two

students in violation of Rule 6C3-10.103, Florida Administrative

Code. Because FAMU is a part of the State University System, the

Board of Regents was also identified as a Petitioner. Respondent

has denied all allegations.

2. FAMU has a non-discrimination policy and harassment

complaint procedure codified in Rule 6C3-10.103, Florida

Administrative Code. Paragraph (6)(b) of the rule prohibits

sexual harassment while paragraph (11)(a) prohibits retaliation.

Respondent was subject to this policy and procedure, and on

August 26, 1998, he signed a paper indicating that he had read

and understood the same.

3. On August 22, 1997, Respondent was hired as General

Manager of WAMF, a radio station owned and operated by FAMU and

which employed a number of FAMU students. Whether he was

considered a non-instructional or instructional employee is not

clear. In any event, the station had been without a full-time

manager "for a while," and Respondent was told to come in and

"put in place some policies and format . . . and move the station

in the direction that [FAMU] thought it should go." He was also

told that the station should be operated as a teaching facility.

FAMU agrees that some of Respondent's decisions in implementing

these directives "caused some people to bristle."

4. Respondent's immediate supervisor was Dr. Hawkins,

Director of FAMU's Division of Journalism. As such, Dr. Hawkins

was required to prepare Respondent's annual evaluations. The

first evaluation was prepared on September 29, 1998, and was

transmitted to Respondent with a letter of the same date. In his

letter, Dr. Hawkins concluded that Respondent's "first year here

has been a mixed bag." While he acknowledged that Respondent had

"turned up the level of professionalism at the station

substantially and in rather quick fashion," he noted other

matters of concern. Among these was a concern that

at least three female students said that you

had made inappropriate remarks to them.

While none of these students have filed a

complaint, I believe I have a responsibility

to mention them now. In addition to the

comments of these students, other female

students have said that they just plan to

stay away from the station so they do not

have to be bothered. This is not the climate

we want.

This letter placed him on official notice that some female

students perceived his conduct towards them as offensive and

having an improper sexual connotation.

5. In response to his evaluation, Respondent wrote

Dr. Bryant a lengthy letter dated October 22, 1998. As to the

allegations of sexual misconduct, Respondent "strongly

suggest[ed] that the University conduct a thorough investigation

of all complaints of this nature."

6. During his tenure with FAMU, Respondent had two or three

meetings with the Dean of the School of Journalism, Media, and

Graphic Arts, Dean Ruggles, and his immediate supervisor, Dr.

Bryant, regarding the foregoing complaints of sexual misconduct.

Respondent was urged to use "extreme caution," to reassess his

behavior with female students, and warned that "if these

allegations were taken to the complaint stage" by a student and

found to be substantiated, there would be severe consequences.

In addition, on at least one occasion, Respondent met with the

Director of FAMU's Office of Equal Opportunity Programs regarding

a complaint by another student. Therefore, it is fair to infer

that Respondent was well aware of on-going accusations being made

against him, and that he should be extremely cautious in his

behavior around female students.

7. After formal complaints of sexual harassment were filed

by three female students in February 1999, FAMU's Office of Equal

Opportunity Programs conducted an investigation. On May 11,

1999, the President of FAMU notified Respondent that the findings

of the investigation revealed that Respondent had violated Rule

6C3-10.103, Florida Administrative Code, and that FAMU intended

to terminate his employment. Respondent then availed himself of

the right to have an "investigatory interview" by a University

Personnel Committee on July 13, 1999. When the committee

determined that no new facts had been presented, Respondent was

dismissed from employment effective August 26, 1999. This appeal

ensued.

8. Although the termination letter does not identify the

specific allegations which form the basis for the termination, in

a Joint Prehearing Stipulation filed by the parties, FAMU has

alleged that Respondent "engaged in conduct and actions toward[s]

[Symphony] Parson, [Deanna] McKinley[,] and [Jackeline] Pou that

rose to the level of sexual harassment in violation of Rule 6C3-

10.103(6)(b), Florida Administrative Code." FAMU further alleged

that Respondent "exhibited behavior towards Ms. Parson and Ms.

Maria Williams, a witness in this matter, that rose to the level

of retaliation as set forth in [Rule] 6C3-10.103(11)(a), F.A.C."

However, there was no evidence regarding retaliation against

Maria Williams, who was not a witness in this case, and that

portion of the charges has been disregarded. Parson, McKinley,

and Pou testified at the final hearing, and although Respondent

disputed the accuracy of their allegations, their testimony has

been accepted as being the most persuasive on these issues.

Findings with respect to those allegations are set forth below.

a. Deanna McKinley

9. Deanna McKinley (McKinley) enrolled at FAMU in the fall

of 1996 and was a senior at the time of hearing. On September 1,

1998, McKinley began working at WAMF and hosted an Inspirational

Gospel Morning Show using the on-air name of "Deanna Devine."

Respondent was her supervisor.

10. Throughout her employment at the radio station,

McKinley felt "uncomfortable" around Respondent. This was

because he would stare at her breasts, always place his hands on

her shoulders when speaking to her, squeeze her shoulders, touch

her hand in the Disc Jockey (DJ) booth, and stand extremely close

to her while the two spoke. She was especially uncomfortable

"being in the same studio with him, because the studio was in a

different part of the building, it was locked, it was dark, [and]

usually [she] was the only one there." Although she disliked

Respondent's conduct and on occasion had told him that she

disapproved of it, McKinley was under the impression that unless

she tolerated Respondent's actions, she would not be allowed to

continue as a DJ or "make progress" at the station.

11. Besides the foregoing conduct, Respondent made personal

remarks of a sexual nature to McKinley. For example, when she

would bend over, he would say something like "Don't bend over

like that, you will get someone excited." He also made a comment

about how "adorable" and "kissable" she was, and that if he were

her man, he "would just kiss [her] all the time." Once, when

McKinley remarked ". . . little old me?", Respondent stared at

her breasts and replied "Nothing on you is little, Deanna. But

that's all right. It's all good."

12. In January 1999, McKinley accidentally dropped

something on the floor in the studio and bent over to pick it up.

Respondent again stated "You should not bend over like that,

Deanna, you may get someone excited." This latest incident

triggered a decision by McKinley to leave the radio station.

13. It is fair to infer from the evidence that McKinley

perceived the radio station to have a hostile working

environment, and that Respondent's conduct unreasonably

interfered with her educational performance and ability to work

at the station.

14. On February 1, 1999, McKinley submitted her letter of

resignation to the radio station. On February 11, 1999, she

filed a complaint with FAMU's Office of Equal Opportunity

Programs.

b. Symphony Parson

15. Symphony Parson enrolled at FAMU in the fall of 1997

with a major in broadcast journalism. She began working at WAMF

that same year as a music director and on-air personality.

Respondent was her supervisor.

16. In April 1998, and while on duty at the station, Parson

was taking a telephone message for the station secretary late one

afternoon when Respondent came up behind her and began rubbing

her shoulders and then moved his hand onto her breast. She told

him to stop, "cursed him," and then left the station.

17. In November 1998, Parson was in the station "writing on

the file cabinet" when Respondent came up behind her and "brushed

up against her" rubbing his shoulders against her. She again

"cursed him out." A month later, he repeated the same conduct.

According to Parson, she felt "violated" and "horrible" whenever

this conduct occurred.

18. Respondent also engaged in inappropriate conversations

with Parson when she was on duty at the station. For example, he

asked her if she was having sex with her boyfriend, and he told

her how "cute" and "sexy" she was. These conversations made her

feel extremely uncomfortable and led Parson to try to avoid

Respondent whenever possible. At the same time, however, Parson

felt that she had to tolerate this conduct to keep her position

at the station. It is fair to infer from the evidence that

Parson found the station to have a hostile working environment,

and that Respondent's conduct unreasonably interfered with her

educational performance and ability to work at the station.

19. On February 8, 1999, Parson filed a charge of sexual

harassment against Respondent with the Equal Opportunity Office.

A few days later, Respondent was placed on administrative leave.

When he returned to his office to clean out his personal items,

he passed by Parson and said "You're dead." Parson reported this

to the police, was forced to get a cell phone out of fear for her

personal being, and asked her parents to temporarily move into

her apartment.

c. Jackeline Pou

20. Jackeline Pou (Pou) enrolled in FAMU's journalism

program in August 1996. She began working at WANF in

September 1997. Respondent was her supervisor.

21. While working at the station, Respondent would

sometimes brush his body against Pou or touch her shoulders,

which made her feel uncomfortable. Almost on a daily basis, he

would make comments about how pretty she was or make comments

about her "eyes". When he spoke to her, he would stare at her

breasts. Once, she observed him staring at her "behind when

[she] was walking away."

22. In the summer of 1998, and just after Pou finished

speaking on the telephone with a friend, Respondent asked who she

was speaking with. When Pou responded "It's none of your

business," Respondent said, "It couldn't have been a guy or the

seat would have been wet."

23. Respondent's conduct made Pou feel intimidated and

uncomfortable, and she disliked being alone in the radio station

with Respondent during the evening hours. Besides creating a

hostile work environment, such conduct also unreasonably

interfered with Pou's educational performance and ability to work

at the station.

24. On February 11, 1999, Pou filed a complaint of sexual

harassment against Respondent with FAMU's Office of Equal

Opportunity Programs.

d. Respondent's contentions

25. Respondent has steadfastly denied all allegations of

sexual misconduct since they first surfaced in 1997 or 1998. At

hearing, Respondent contended that he was an unpopular figure

among the students due to his strong disciplinary measures.

While this may be true, it does not justify his actions towards

McKinley, Parson, and Pou. He suggested that McKinley's

complaint was motivated by her displeasure with his disciplinary

measures and failure to obtain her a parking pass. Respondent

further suggested that Parson bore him ill-will after he demoted

her to a different position at the station. He also contended

that out of revenge, the three women met and conspired to file

false complaints in an effort to have him removed from the

station. Finally, Respondent suggested that each of the

complainant's testimony was full of inconsistencies and lacked

specificity as to certain dates and times. These contentions

have been considered by the undersigned and rejected.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57, Florida Statutes (1999).

27. As the party seeking to terminate Respondent's

employment, Petitioners must prove by a preponderance of the

evidence that the allegations which form the basis for the

termination are true. See , e.g. , Allen v. School Bd. of Dade

County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

28. As clarified in the parties' Joint Prehearing

Stipulation, Petitioners have alleged that Respondent sexually

harassed three female students (McKinley, Pou, and Parson), and

retaliated against two others (Parson and Maria Williams).

Because no evidence was presented regarding retaliation against

Williams, no discussion on that issue is required. Further, even

taking into account Respondent's remark to Parson that "You're

dead," the remark, by itself and nothing more, does not

constitute retaliation in the workplace as contemplated by the

rule. Therefore, that portion of the charges is dismissed.

29. Rule 6C3-10.103(6)(b), Florida Administrative Code,

governs this dispute, and it provides in pertinent part as

follows:

(b) Harassment shall include:

1. Any slurs, innuendos or other verbal or

physical contact reflecting on an

individual's . . . gender . . . which has

the purpose or effect of creating an

intimidating, hostile or offensive

educational or work environment; has the

purpose or effect of unreasonably interfering

with the individual's work or school

performance or participation; or otherwise

adversely affects an individual's employment

or educational opportunities.

2. The denial of or the provision of aid,

benefits, grades, rewards, employment,

faculty assistance, services, or treatment on

the basis of sexual advances or requests for

sexual favors.

3. Sexual advances, requests for sexual

favors, and other verbal or physical conduct

of a sexual nature when submission to such

conduct is made either explicitly or

implicitly a term or condition of an

individual's employment or educational

career; submission to or rejection of such

conduct is used as a basis for educational or

employment decisions affecting the

individual; or such conduct has the purpose

or effect of unreasonably interfering with an

individual's work or educational performance

or creating an intimidating, hostile or

offensive working or educational environment.

30. Also pertinent to this dispute are paragraphs (8)(b)

and (c) of the same rule which provide the following procedural

requirements:

(b) A complaint filed under this rule shall

be filed on the Charge of Discrimination/

Harassment Form EOP100 Revised 1994, which is

incorporated herein by this reference, and

submitted to the EOP Officer within 60

calendar days after the alleged occurrence of

the discrimination/harassment incident . The

form may be obtained from the EOP Office.

(c) No formal action, including

investigation may be undertaken unless and

until a formal complaint is filed. This

provision shall not limit the University in

any way from initiating its own review of the

complaint and taking appropriate action

should such be deemed warranted under the

circumstances presented.

(Emphasis added)

31. Respondent has repeatedly contended that the foregoing

rule calls for dismissal of the matter because at least two of

the complaints were filed by the students more than 60 days after

the last alleged harassment occurred, and thus FAMU is barred by

its own rule from bringing this action. Although this contention

was twice rejected, once by order and again by oral ruling during

the final hearing, that ruling is reaffirmed a third time.

Paragraph (8)(c) clearly allows FAMU to investigate a harassment

complaint on its own volition, irrespective of whether or not it

was filed within the 60-day time frame described in paragraph

(8)(b).

32. Second, Respondent has twice contended, once before

hearing and again at hearing, that the charges should be

dismissed because he was not offered a point of entry in the

termination letter. While it is true that the letter omitted

this critical advice, his former counsel nonetheless filed a

request for a hearing some four and one-half months after the

letter was issued, and Respondent has not shown how he was

prejudiced by this procedural error. Moreover, after it received

the request, FAMU promptly forwarded the matter to the Division

of Administrative Hearings to be set for hearing. Therefore, the

earlier rulings denying this contention are reaffirmed.

33. By a preponderance of the evidence, FAMU has

established that Respondent engaged in unwanted physical contact

of a sexual nature with McKinley, Parson, and Pou, that is, he

touched or squeezed McKinley's and Parson's shoulders, he touched

McKinley's hand, he brushed his body up against the bodies of all

three, and he placed his hand on Parson's breast; that he engaged

in nonverbal conduct of a sexual nature by staring at the breasts

of McKinley and Pou whenever he spoke with them; that he made

gratuitous, unwelcome, and offensive remarks of a sexual nature

to all three; that this conduct created an intimidating, hostile,

or offensive working environment; and that it unreasonably

interfered with the students' work or educational performance.

34. The foregoing conduct constitutes harassment, as that

term is defined by Rule 6C3-10.103(6)(b)1. and 3., Florida

Administrative Code. Therefore, the harassment allegations which

form the basis for the termination letter have been sustained.

35. Without accompanying argument or explanation,

Respondent has attached to his Proposed Recommended Order a copy

of the case of Gupta v. Fla. Bd. of Regents , 212 F.3d 571 (11th

Cir. 2000), an employment discrimination case brought under Title

VII of the federal Civil Rights Act of 1964, presumably for the

purpose of showing that, under the rationale of that decision,

the alleged conduct, even if proven, does not equate to sexual

harassment. In Gupta , a Florida Atlantic University female

professor contended that she had suffered sexual harassment while

employed at the university. Briefly, and in the context of an

employment discrimination case (as opposed to a termination case

for engaging in sexual harassment), the court described sexual

harassment as being a hostile environment which is based on

bothersome attentions or sexual remarks that are sufficiently

severe or pervasive to create a hostile work environment; it also

held that in making out a prima facie case of discrimination,

among other things, the plaintiff must establish that not only

did she subjectively perceive the environment as hostile and

abusive, but also that a reasonable person would perceive the

environment to be hostile and abusive. Id. at 582-583. Using

these standards, the court found that there was insufficient

evidence presented to show that the established conduct was

frequent, severe, threatening, or humiliating, or that a

reasonable person would perceive the conduct as hostile and

abusive. Thus, it concluded that the case merely exemplified

"the ordinary tribulations of the workplace." Id. at 586.

36. Assuming for the sake of argument only that FAMU must

prove that Respondent's conduct meets the definitional standards

used in federal employment discrimination cases, FAMU has

nonetheless met its burden. This is because the conduct was not

isolated but rather was repeated over an extended period of time;

it was severe (in that it included physical touching, staring,

and crude remarks of a sexual nature); and it humiliated and

embarrassed the women. Put another way, the conduct was not

merely intersexual flirtation, ordinary socializing, or the

"ordinary tribulations of the workplace." At the same time, not

only did the women perceive the conduct as creating an abusive

working environment, but a reasonable person would reach the same

conclusion as well. Therefore, assuming arguendo that the

definitional standards in Gupta apply to a state university

employee discharge case, they have been satisfied.

37. Finally, Respondent's post-hearing request by letter

dated July 12, 2000, that this case "be classified as

confidential" due to "its sensitive and damaging nature" is

denied on the ground the undersigned has no statutory authority

to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Florida A & M University enter a final

order confirming the dismissal of Respondent as an employee.

DONE AND ENTERED this 29th day of August, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone], SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 2000.

COPIES FURNISHED:

Bishop C. Holifield, General Counsel

Florida A & M University

Suite 300, Lee Hall

Tallahassee, Florida 32307-3100

Avery D. McKnight, Jr., Esquire

Ruth N. Selfridge, Esquire

Florida A & M University

Suite 300, Lee Hall

Tallahassee, Florida 32307-3100

Calvin C. Miles, Jr.

501 Blairstone Road, Apartment 123

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.