99-003856 Florida A &Amp; M University vs. James Strickland Status: Closed Recommended Order on Monday, July 24, 2000.

Summary: University professor is not guilty of quid pro quo sexual harassment; there is no credible evidence that professor withheld grades as means to gain sexual favors.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A & M UNIVERSITY, )

)

Petitioner, )

)

vs. ) Case No. 99-3856

)

JAMES STRICKLAND, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A formal hearing was conducted in this case on April 18

through 19, 2000, in Tallahassee, Florida, before the Division

of Administrative Hearings, by its Administrative Law Judge,

Suzanne F. Hood.

APPEARANCES

For Petitioner: Bishop C. Holifield, Esquire

Avery D. McKnight, Esquire

Florida A & M University

300 Lee Hall

Tallahassee, Florida 32307

For Respondent: Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue is whether Respondent's employment with

Petitioner should be terminated for violation of Rule 6C3-

10.103, Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated August 6, 1999, Petitioner Florida A & M

University (Petitioner), advised Respondent James Strickland

(Respondent) that he would be dismissed from employment for

violation of Rule 6C3-10.103, Florida Administrative Code. On

August 23, 1999, Respondent requested a formal administrative

hearing to contest allegations that he had violated Petitioner's

rule against sexual harassment. Petitioner referred this matter

to the Division of Administrative Hearings on September 14,

1999.

A N otice of Hearing scheduled the case for hearing on

January 12 through 14, 2000. After a couple of continuances,

the case was heard as rescheduled on April 18 through 19, 2000.

Petitioner presented the testimony of five witnesses and

offered 43 exhibits, which were accepted into evidence.

Respondent testified on his own behalf and presented the

testimony of four additional witnesses; he offered five

exhibits, which were accepted into evidence.

On April 20, 2000, Respondent filed a Consented Motion to

Reopen and Supplement Record. A copy of the deposition

testimony of James Carlton Williams was filed that same day. An

order granting the motion was issued on April 21, 2000.

The court reporter filed a copy of the Transcript on May 5,

2000.

On May 30, 200 0, Respondent filed an Unopposed Motion for

Extension of Time for Filing Post Hearing Documents. This

motion was granted by order dated June 6, 2000.

The parties filed their proposed findings of fact and

conclusions of law on June 7, 2000.

On June 7, 2000, Respondent also filed a Motion to Strike

certain lines from the deposition testimony of Yolando Gibson,

Petitioner's Exhibit No. 33. Petitioner filed a response to

this motion on June 14, 2000. An order dated June 20, 2000,

granted the motion.

FINDINGS OF FACT

1. Respondent has been a member of Petitioner's faculty

for 30 years. He teaches in the Department of Biology and in

the Physical Therapy Program. Over the years, Respondent taught

comparative anatomy, developmental anatomy, pathophysiology,

biology and other courses in the graduate and undergraduate

biology programs.

2. Yolanda Gibson (Gibson) attended school at Florida A &

M University from 1995 to 1999. She enrolled in Respondent's

comparative anatomy lecture class and comparative anatomy lab

class in the fall of 1995.

3. Gibson received a midterm exam grade of 93 in the

comparative anatomy lecture class. In December 1995, Gibson was

officially excused from taking the final exam in the comparative

anatomy lecture class due to illness. Respondent subsequently

assigned her an incomplete ("I") grade for the lecture class.

4. Gibson had a "B" grade average going into the final

exam for the comparative anatomy lab class. However, she failed

to take the exam. Gibson's testimony to the contrary is not

persuasive. Respondent assigned her an "I" grade for the lab

class even though she did not have an excuse for missing the

final exam.

5. On February 3, 1996, Respondent gave Gibson a make-up

exam for the comparative anatomy lecture class. She took the

make-up exam in Respondent's office along with one other

student, Soyini McClellan.

6. Respondent reviewed Gibson's make-up exam and graded

the objective portion. Based on Respondent's initial review, it

was obvious that Gibson had performed poorly on the make-up

exam. Respondent intended to go back and carefully grade the

essay portions of the exam but neglected to do so right away.

Subsequently, Respondent misplaced Gibson's make-up exam.

7. Respondent submitted a change-of-grade form for at

least five students who took a make-up exam in spring of 1996

for the comparative anatomy lecture class. Gibson was not one

of those students.

8. Later in the spring of 1996, Gibson asked Respondent

about the grade on her make-up exam in the comparative anatomy

lecture class. Respondent did not tell her that she had made an

"F." Rather, as was his custom, Respondent informed Gibson that

she "did not do well" on the exam and suggested that she "sit

in" on the course again and retake the final.

9. Respondent had a regular practice of permitting

students with an incomplete grade who did not do well on a make-

up exam to sit in on a subsequent class and retake the final

examination rather than assign them a grade of "F." He also

routinely allowed students who did poorly on a final examination

to take a grade of "I" in lieu of a failing grade in an attempt

to raise that grade by sitting in on the class in a subsequent

term. Respondent's practice in this regard was improper and

resulted in an excessive number of incomplete grades. However,

Respondent has not been accused of violating Petitioner's

grading policy relative to any student other than Gibson.

10. When Respondent reviewed the objective section of

Gibson's make-up exam in the comparative anatomy lecture class,

he was aware that Gibson wanted to be admitted to the physical

therapy program. She had asked him to write a letter of

recommendation for her admission. Respondent was willing to

write the letter in part as a favor to his lab assistant, Larry

Barnes, who was a good friend of Gibson's. Respondent had

helped Mr. Barnes gain admission to the program.

11. The physical therapy program has stringent admission

requirements. Respondent and Gibson knew that she could not

obtain admission to the program with the grade and minimal skill

reflected on her comparative anatomy lecture make-up exam.

Therefore, Respondent suggested that Gibson sit in on the class

in a subsequent term, not only to prevent her from having a

failing grade on her record, but also to ensure her knowledge of

the material and her success in the program if she gained

admission. Respondent's recommendation would have been the same

if he had been aware that Gibson's overall grade in the lecture

class had been a "D" instead of an "F."

12. Gibson made no effort to make-up the comparative

anatomy lab exam in the spring of 1996. Respondent and Gibson

knew that she had a grade of "I" in that class, but neither one

raised the subject of a make-up exam with the other.

13. As a result of Respondent's failure to turn in a make-

up grade in the lecture and lab classes within the time required

under Petitioner's grading policies, Gibson's "I" grades became

"F" grades in both classes.

14. In the summer of 1997, Respondent permitted Gibson to

sit in on his comparative anatomy lecture and lab courses

without registering for the classes. Respondent also suggested,

at the urging of Mr. Barnes, that Gibson become one of his

laboratory assistants. Respondent made this suggestion in the

hope that the experience would assist Gibson in her admission to

the physical therapy program.

15. Gibson was not happy about having to sit in on the

classes again, but she accepted Respondent's offer of becoming a

laboratory assistant because of the opportunity of obtaining

financial aid. Respondent's subsequent attempts to secure

financial aid or pay for Gibson in exchange for her services as

a lab assistant were unsuccessful. However, it is not uncommon

for a student to act as a teaching assistant or a lab assistant

solely for the benefit of the experience.

16. When Gibson agreed to sit in on Respondent's summer

classes and to act as one of his lab assistants, she had no

reason to think that Respondent had any sexual interest in her.

Respondent did not put any conditions on getting her grades

changed by sitting in and taking the exams.

17. During the summer term, Gibson and Carlton Williams

served as Respondent's laboratory assistants. Respondent

introduced Gibson and Mr. Williams as lab assistants at the

beginning of the lab class. Gibson acted as a lab assistant

throughout the summer, although her participation and attendance

were sporadic from the middle to the end of the lab class. Some

of her absences were due to her mother's illness, which required

Gibson to leave town for part of the summer.

18. At the beginning of the comparative anatomy lecture in

the summer of 1997, Respondent called on Gibson to answer

questions in class. He did so to assist Gibson in learning the

material. He wanted her to be prepared for the competition she

would face if admitted to the physical therapy program. His

questions were not meant to single her out or to be unfair.

19. In the summer of 1997, Gibson began working at the

mobile concession stand operated by Henry Norton on or near

Petitioner's campus. Respondent has known Mr. Norton for

approximately 20 years. Mr. Norton was married at one time to a

friend of Respondent's. At all times relevant here, Mr. Norton

worked for Petitioner at Palmetto North, a residence hall.

Gibson became aware of the relationship between Mr. Norton and

Respondent after summer classes began.

20. Respondent admits that he had several conversations

with Mr. Norton about Gibson during the summer. These

conversations were limited and related to one of the following:

(a) Respondent's need to get in touch with Gibson about her lab

duties; (b) Respondent's agreement to tutor Gibson and her

roommate; and (c) Respondent's consent to loan Gibson money to

pay her rent or car payment.

21. Because Gibson was his lab assistant, Respondent had a

need to contact her from time to time regarding preparation for

and review of the material for the lab course. Respondent knew

Gibson worked for Mr. Norton. Sometimes Respondent would

contact Mr. Norton at work in an effort to contact Gibson.

Other times Respondent would either call Gibson's home, leaving

her messages, or page her on her pager. On one occasion,

Respondent called Gibson at her mother's home in Ft. Pierce,

Florida, to discuss class business, including Gibson's class

performance.

22. During the summer of 1997, Respondent tutored Gibson

and her roommate in another professor's anatomy and physiology

class. These sessions were usually conducted in the student

lounge at Palmetto North in the evenings. Respondent did not

initiate the tutoring sessions, but agreed through conversations

with Mr. Norton to meet the students at the residence hall.

23. Respondent also agreed to tutor Gibson and her

roommate at lunch or dinner on several occasions during the

summer. Respondent reviewed old anatomy and physiology tests

during some of these engagements; other dinner meetings were

more in the nature of a social relationship between students and

teacher. However, Respondent never sought to have lunch or

dinner with Gibson as a date for purposes of establishing a

romantic relationship.

24. Respondent did not invite Gibson to have dinner with

him at his home. On one occasion Gibson and her mother went by

Respondent's home for a visit.

25. Mr. Norton and Gibson showed Respondent how to contact

Gibson on her pager. At that time, Gibson was under the

mistaken impression that Respondent had purchased the pager for

her. Persuasive evidence indicates that Mr. Norton and not

Respondent purchased the pager for Gibson.

26. Respondent may have referred Gibson to his dentist in

the summer of 1997. There is no persuasive evidence that

Respondent paid her dental bill.

27. Respondent did not give Gibson money to have her hair

done. The only competent evidence in the record indicates that

Gibson received that money from Mr. Norton. Gibson's

understanding that Respondent gave the money to Mr. Norton to

give to her was incorrect.

28. Sometimes Respondent goes to the dog track. On one

occasion, one of his male students drove him there. However,

the greater weight of the evidence shows that Respondent did not

go to the dog track with Gibson.

29. Respondent did not kiss or attempt to kiss Gibson in

Jones Hall or at any other location. Gibson's testimony to the

contrary is not credible.

30. Respondent did not offer to give Gibson an unlimited

charge card. Gibson's testimony that Respondent confirmed this

offer in person is not persuasive. The same is true regarding

Gibson's testimony that Respondent paid for gas in her car and

for an oil change.

31. At the end of the summer, Respondent became aware in

his conversations with Mr. Norton that Gibson needed money to

pay her rent and/or car payment. Respondent felt guilty and

obligated to help Gibson because she had worked as a lab

assistant and he had not been able to secure financial

assistance for her through the work/study program.

32. Respondent loaned or gave Gibson $300.00 on two

occasions: August 3, 1997, and August 7, 1997. On each

occasion Gibson gave Respondent her deposit slips so that he

could make the deposits directly to her bank account.

Respondent did not make these deposits with the intent of

establishing an inappropriate sexual relationship with Gibson.

33. On at least one other occasion, Respondent loaned a

male student some money. The male student subsequently repaid

the loan.

34. Respondent also has given money to Brendetta Douglas,

one of his former students, in exchange for her assistance in

monitoring his diabetes. Ms. Douglas was a student of

Respondent's in 1995. She began assisting with Respondent's

medical condition in 1997. At that time, Ms. Douglas was not

one of Petitioner's full-time students. The relationship

between Ms. Douglas and Respondent continues today. It is not

now and never has been sexually motivated.

35. Gibson opened her bank account with approximately

$100.00 in cash. Respondent did not give the cash to Gibson

directly or indirectly through Mr. Norton.

36. Gibson did not take the midterm or final exam in the

comparative anatomy lecture course during the summer of 1997.

She chose instead to focus on the anatomy and physiology class

for which she was officially enrolled. She did not have time to

study for her comparative anatomy lecture course after missing

classes to care for her mother.

37. Gibson took the final exam in the comparative anatomy

lab class in the summer of 1997. She earned a "B" in that

class. Respondent intended to submit a form to change her "F"

grade in the 1995 lab class to a "B" grade. Because Gibson was

not officially registered in the 1997 lab course, Respondent did

not submit Gibson's name and grade on the regular grade sheet.

He forgot to submit a separate grade form to change Gibson's

grade at that time.

38. The matter of Gibson's grade in the lab class slipped

Respondent's mind until after she filed her complaint.

Respondent submitted individual grade change forms for Gibson's

lab grade in January 1999 and November 1999 without success.

39. In January 2000, Respondent tried a third time to

change Gibson's lab grade. However, he mistakenly indicated he

was changing a grade for the Summer 1997 course for which Gibson

was not registered. Respondent's efforts failed again.

40. Respondent became Gibson's faculty advisor in the

summer of 1997. In that role, Respondent suggested that Gibson

take his developmental anatomy course in the fall of 1997.

Respondent made this suggestion in an effort to ensure that

Gibson had the proper academic background for admission to and

success in the physical therapy program.

41. At the beginning of the 1997 fall term, Gibson

indicated to Respondent that she wanted to drop his

developmental anatomy course. During that conversation, Gibson

stated that Mr. Norton was not Respondent's friend because Mr.

Norton wanted to use Gibson to obtain money from Respondent.

Gibson noticed a surprised expression on Respondent's face as he

replied, "Why? He can come to me for that." At no time in this

or any other conversation did Respondent acknowledge that he was

withholding Gibson's grades for sexual favors or that everything

Mr. Norton was telling Gibson was true. Respondent never told

Gibson that she needed to do anything to get her grades changed

other than to sit in on his classes and take the examinations

again.

42. Subsequently, Gibson dropped the developmental anatomy

course and changed her major to psychology. She never returned

to Respondent's office or otherwise contacted him about her

grades in comparative anatomy lecture and lab.

43. In January 2000, Respondent renewed his efforts to

find Gibson's February 1996 make-up exam for the 1995

comparative anatomy lecture class. With the help of Ms.

Douglas, Respondent finally located the make-up exams taken by

Gibson and her classmate, Ms. McClellan, on February 3, 1996.

44. After completing the grading process, Respondent

determined that Gibson had failed the exam. He gave the test to

another professor who confirmed Gibson's grade on the test.

Gibson accumulated only 94 points out of 199 total points for a

score of 47 percent. Her make-up exam score is an "F" under the

applicable grading scale. Her overall grade should have been

62, a passing grade equivalent to a "D."

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

46. In order to prevail, Petitioner must prove by a

preponderance of the evidence that Respondent's actions

constitute proper cause for dismissal under Rule 6C3-10.103,

Florida Administrative Code. Allen v. Dade County School Board ,

571 So. 2d 568 (Fla. 3rd DCA 1990).

47. Rule 6C3-10.103, Florida Administrative Code,

authorizes Petitioner to dismiss employees who have engaged in

acts of sexual harassment against its students; it states as

follows, in pertinent part:

(6) Definition of Discrimination and

Harassment.

* * *

(b) Harassment shall include:

1. Any slurs, innuendos [sic] or other

verbal or physical conduct reflecting on an

individual's race, ethnic background, gender

or handicapping condition 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.

48. The instant case is a quid pro quo sexual harassment

case in which Respondent is charged with withholding Gibson's

grades in an attempt to gain her sexual favors. Petitioner has

not met its burden of proving that Respondent's withholding of

Gibson's grades was sexually motivated.

49. There is no dispute that Gibson's initial grade of "I"

in the comparative anatomy lecture class was legitimate.

Subsequently, she failed the make-up examination and earned a

final grade of "D." Respondent should have recorded that grade

in a timely fashion, but there is no persuasive evidence that

his failure to do so was sexually motivated. Instead,

Respondent became focused on helping Gibson, at her request,

gain admission to the physical therapy program. Having

committed to this course of action, and following his improper

but routine practice of allowing students to improve their

grades by retaking a final after sitting in a subsequent class,

Respondent had no reason to submit a grade change form prior to

Gibson's sitting in on the course again.

50. Gibson's testimony that she repeatedly asked

Respondent to change her grades after she took the February 1996

make-up final exam and before the summer of 1997 is not

credible. Gibson did not change her goal of gaining admission

to the physical therapy program until the fall of 1997. At that

time, she changed her major to psychology.

51. Gibson agreed to sit in on the comparative anatomy

lecture class again in the summer of 1997. Gibson did not take

the midterm or final exam. Respondent cannot be faulted for

failing to request a grade change in the lecture class at that

time.

52. As to Gibson's comparative anatomy lab grade, she

never took the final exam in 1995 and did not attempt to take a

make-up final in 1996. Respondent should have given Gibson an

"F" grade in 1995 because she did not have an excuse for not

taking the exam. Instead, Respondent gave Gibson an "I" grade,

which later turned into an "F."

53. Respondent subsequently agreed to let Gibson sit in on

a subsequent comparative anatomy lab class and to change her

1995 lab grade if she passed the course. This decision was

contrary to Petitioner's grading policy, but was consistent with

Respondent's policy of helping his students achieve their career

goals.

54. Respondent has never denied that Gibson earned a "B"

in the comparative anatomy lab class in the summer of 1997. He

was negligent in not turning in a grade change form in a timely

fashion. When he discovered his oversight, Respondent tried

unsuccessfully to correct his mistake.

55. There is no evidence that any of Respondent's actions

before the summer of 1997 was in any way sexually motivated.

Gibson had no reason to suspect that Respondent was improperly

withholding her grades until she began working for Mr. Norton

after summer school began in 1997. By that time, Gibson was

sitting in on the lecture and lab classes and working as one of

Respondent's lab assistants. Respondent and Gibson believed

that she would gain valuable work experience and a financial

benefit.

56. The situation began to change after Mr. Norton came

into the picture. At that time, Gibson began to assume that

Respondent was being nice to her in order to gain her sexual

favors. This mistaken belief was based on false statements made

by Mr. Norton to Gibson regarding Respondent's intentions.

There is no evidence that Respondent was aware of the things Mr.

Norton was saying until the fall of 1997 when Gibson dropped

Respondent's developmental anatomy class.

57. In the summer of 1997 Respondent had legitimate

reasons to contact Gibson by phone, on her pager, and at Mr.

Norton's concession stand. At times he needed to talk to Gibson

about her lab duties. At other times Respondent needed to

discuss arrangements for anatomy and physiology tutoring

sessions with Gibson and her roommate. Respondent's efforts to

contact Gibson were not sexually motivated.

58. Respondent graciously agreed to assist Gibson and her

roommate by tutoring them in anatomy and physiology, a core

subject for the physical therapy program. Most of these

sessions took place on campus in a residence hall where Mr.

Norton worked. Perhaps it was not wise for Respondent to meet

Gibson and her roommate for tutoring sessions during lunch and

dinner. However, Respondent's only objective was to help his

students academically. Respondent's conduct during these

sessions was never inappropriate and never implied that he

desired anything other than a student/teacher relationship with

Gibson. Respondent certainly never attempted to kiss Gibson.

59. Respondent freely admits that he gave Gibson $600.00

in August of 1997. He did so only because he had been unable to

obtain work/study funds for her. He felt obligated to help her

and did so with no ulterior motive or improper purpose.

60. There is no credible evidence that Respondent gave

Gibson money or gifts other than the $600.00, which he deposited

into her bank account. There is evidence that Mr. Norton gave

Gibson cash money and paid for the pager.

61. When Gibson went to Respondent's office in the fall of

1997 to drop her developmental anatomy class, she was not sure

whether Respondent was aware of the statements allegedly made by

Mr. Norton. Respondent expressed genuine surprise when Gibson

described Mr. Norton's alleged statements and conduct. Even in

that conversation, no discussion of withholding grades for sex

occurred.

62. Gibson's conclusion that Respondent withheld her

grades to gain sexual favors is based entirely on the alleged

statements by Mr. Norton. Mr. Norton did not testify at the

hearing. His alleged statements are inadmissible hearsay.

Section 120.57(1)(c), Florida Statutes. Moreover, to the extent

that Mr. Norton's statements are admissible, they are contrary

to the greater weight of the evidence.

63. There was no conspiracy or agency between Respondent

and Mr. Norton. Respondent never told Gibson that everything

Mr. Norton was saying was true. There is no non-hearsay

evidence in the record to establish precisely what Mr. Norton

was telling Gibson. If Mr. Norton was telling Gibson that

Respondent would take care of her if she granted Respondent

sexual favors, Respondent was unaware of it.

64. This case contains conflicts in the evidence,

inconsistency in witness testimony and recollections, and some

unexplained events. On balance, it is more likely that

Respondent and Gibson were victims of Mr. Norton's scheming.

65. Respondent is the proverbial absentminded professor.

He is a kindhearted old gentleman who can be manipulated by

others. His generosity and commitment to helping his students

by allowing them to sit in on his classes and retake exams when

they are not entitled to do so contributed to the suspicion of

his guilt in this case. However, there is no credible evidence

that Petitioner violated Rule 6C3-10.103, Florida Administrative

Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order reinstating Respondent

with back pay and all lost employment benefits, plus interest

where applicable, from the date of loss.

DONE AND ENTERED this 24th day of July, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of July, 2000.

COPIES FURNISHED:

Bishop C. Holifield, Esquire

Avery D. McKnight, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

2544 Blairstone Pines Drive

Post Office Box 1547

Tallahassee, Florida 32302

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399-0400

The Honorable Tom Gallagher

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

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.