00-005115PL Palm Beach County School Board vs. Boris V. Banks Status: Closed Recommended Order on Wednesday, September 12, 2001.

Summary: Repeated violation of sexual harassment policy constituted grounds to terminate employment of an educational support employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 00- 5115PL

)

BORIS V. BANKS , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on May 22, 2001, at West Palm Beach, Florida, before

Claude B. Arrington, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Alan M. Aronson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

For Respondent : No appearance

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the

Administrative Complaint and, if so, whether those offenses

constitute just cause to terminate his employment with

Petitioner.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, the School Board

of Palm Beach County (the School Board) employed Respondent as a

behavioral interventionist assistant (BIA). On December 22,

2000, the School Board filed an Administrative Complaint

alleging certain facts pertaining to Respondent's conduct.

Based on those allegations, the School Board charged, in the

alternative, that Respondent violated the following School Board

Policies or State Board of Education Rules, which provide

grounds for the termination of his employment:

School Board Policy 3.19 ;

School Board Policy 3.27 ;

Rule 6B-1.001(2), Florida Administrative

Code ;

Rule 6B-1.001(3), Florida Administrative

Code ;

Rule 6B-1.006(3)(a), Florida

Administrative Code ;

Rule 6B-1.006(3)(e), Florida

Administrative Code ;

Rule 6B-1.006(5)(d), Florida

Administrative Code ;

Rule 6B-4.009(3), Florida Administrative

Code; or

Rule 4.009(3)(6), Florida Administrative

Code.

Respondent timely challenged the allegations of the

Administrative Complaint, the matter was referred to the

Division of Administrative Hearings, and this proceeding

followed.

At the final hearing in this case, the School Board

presented the testimony of eight witnesses, each of whom was

employed by the School Board at the times pertinent to this

proceeding. The School Board offered seven exhibits, each of

which was admitted into evidence.

Respondent did not appear at the hearing, and no one

testified or introduced exhibits on his behalf.

At the conclusion of the hearing, the parties were allowed

20 days from the filing of the transcript to file their proposed

recommended orders. A transcript of the proceeding was filed on

July 2, 2001. On July 17, 2001, the School Board moved for an

extension of time to file its Proposed Recommended Order until

August 27, 2001. On July 19, 2001, that motion was granted.

The School Board timely filed its Proposed Recommended Order,

which has been duly-considered by the undersigned in the

preparation of this Recommended Order. Respondent did not file

a Proposed Recommended Order.

FINDINGS OF FACT

1. The School Board employed Respondent as a BIA during

portions of the 1999-2000 and the 2000-2001 school years.

2. Respondent is not a member of a collective bargaining

unit, and the terms of his employment are not subject to the

provisions of a collective bargaining agreement.

3. At all times pertinent to this proceeding Respondent

was an educational support employee within the meaning of

Section 231.3605(1)(a), Florida Statutes. 1/

4. Respondent attended the School Board's new employee

orientation on October 12, 1999. As part of the orientation, a

film was presented and a discussion held on the issue of sexual

harassment in the workplace. The School Board's sexual

harassment policy and its import were discussed at the

orientation session.

5. The School Board's Policy 3.19 deals in part with

sexual harassment on the job. The policy includes a definition

of sexual harassment, prohibits employees from engaging in

sexual harassment, and provides that employees found to have

engaged in sexual harassment would be disciplined and could lose

his or her job. The School Board's Policy 3.19 provides, in

pertinent part, as follows:

1. Sexual harassment is strictly

prohibited. Sexual harassment has been

defined as "unwelcome" sexual advances,

requests for sexual favors, and other

verbal, written conduct of a sexual nature

when:

* * *

c. Such conduct has the purpose or effect

of unreasonably interfering with the

individual's work performance, or creating

an intimidating, hostile, or offensive

working environment.

2. Examples of sexual harassment may

include but are not limited to the

following:

a. Gestures, letters, notes, invitations,

comments, slurs, jokes, or epithets that are

suggestive, derogatory, or obscene.

* * *

d. Continuing to express sexual interest

after being informed that the interest is

unwelcome.

6. At all times pertinent to this proceeding Respondent

was aware of the School Board's policy prohibiting sexual

harassment.

7. Respondent's first job assignment as a BIA was at

Indian Ridge Center School (Indian Ridge) in the fall of the

school year 1999-2000.

8. At Indian Ridge, Respondent worked with teachers to

diffuse crises resulting from student misbehavior and worked

with students to improve their social skills.

9. Shortly after arriving at the school, Respondent made

lewd comments of a sexual nature to Kathy Petrillo, a middle

school teacher. He made comments about her body and asked her

to go out with and have sex with him. Ms. Petrillo repeatedly

told Respondent that she was not interested in him. Despite her

efforts to rebuff Respondent, he continued to make inappropriate

comments and gestures with sexual overtones to Ms. Petrillo.

10. Ms. Petrillo complained to William Basil, the

Assistant Principal of Indian Ridge, about Respondent's

inappropriate interaction with her and with other female members

of the school staff.

11. During the fall of 1999, Respondent also made

inappropriate comments and gestures with sexual overtones to

Marlow Belkin, a female teacher at Indian Ridge. Ms. Belkin

told Respondent that she had a boyfriend and was not interested

in him, but he persisted with inappropriate and unwelcome

comments. Respondent's conduct made Ms. Belkin feel very

uncomfortable. Ms. Belkin was informed by students that

Respondent had a "crush" on her. When she passed Respondent in

the hallway, he stared at her. Ms. Belkin complained to

Mr. Basil about Respondent's conduct. Ms. Belkin made it clear

to Mr. Basil and to Respondent that she wanted no involvement

with Respondent. After her complaint to Mr. Basil, Respondent's

inappropriate conduct towards her stopped for a while. However,

on Valentine's Day, in February of 2000, Respondent sent to

Ms. Belkin a vase of carnations. Ms. Belkin refused the flowers

after she learned that Respondent had sent them and wrote

Respondent a letter, with a copy to Mr. Basil, advising

Respondent she wanted no further personal advances from him.

While there were no further personal advances from Respondent,

he would leer at Ms. Belkin whenever he saw her.

12. Derrilyn Cerbone-Kreling, a female physical education

teacher at Indian Ridge, met Respondent for the first time when

he began working at her school. Shortly after his arrival,

Respondent asked Ms. Cerbone-Kreling if she would like to kiss

him, touch him, feel his biceps, and have sex with him.

Additionally, when Respondent went to the school's gym to

interact with the kids, Respondent displayed his body, lifted up

his shirt, and asked Ms. Cerbone-Kreling to be physical with

him. Respondent's behavior was consistent towards Ms. Cerbone-

Kreling throughout the fall of 1999. Ms. Cerbone-Kreling

complained to Mr. Basil about Respondent's conduct.

13. In response to complaints about Respondent's conduct,

Mr. Basil advised Respondent in November 1999 that he had to be

professional while working at all times and that he must stop

making passes towards female co-workers.

14. Mr. Basil received another complaint concerning

Respondent's conduct towards female employees in December of

1999. Mr. Basil spoke to Respondent about the allegations and

advised him the situation needed to be taken very seriously. He

also gave Respondent a written memorandum dated December 21,

1999. In the memorandum, Mr. Basil advised Respondent of the

most recent allegations of sexual harassment and also referenced

the earlier conversation they had in November concerning the

same issue. Mr. Basil specifically referenced the new employee

orientation attended by Respondent and the need to maintain a

safe and nondiscriminatory working environment. Respondent

acknowledged receipt of the memorandum, but provided no other

response.

15. On or about May 4, 2000, a professional standards

investigation was initiated concerning Respondent, based in part

on allegations he had made inappropriate comments towards female

employees at Indian Ridge earlier in the school year.

16. Raymond T. Miller, a personnel compliance

administrator with professional standards, conducted an

investigation of the allegations.

17. On May 18, 2000, Respondent was placed on

administrative leave with pay and assigned to his home.

18. After Mr. Miller completed his investigation, a

committee of senior administrators reviewed the record of the

investigation, including written statements from various

witnesses. The committee determined that probable cause existed

to sustain the allegations and recommended to the School Board

that Respondent's employment be suspended for ten days without

pay. The School Board rejected the recommendation as being too

lenient. The committee ultimately recommended a 15-day

suspension, which the School Board accepted. Respondent served

the 15-day suspension, beginning in September 2000, without

filing a grievance or any other appeal.

19. Subsequent to serving the 15-day suspension,

Respondent was transferred to Seminole Trails Elementary School

(Seminole Trails). He began working there as a BIA in October

2000.

20. Shortly after arriving at Seminole Trails, Respondent

met Tabitha Lindor, a female School Board employee who worked as

a Creole Language Facilitator. Respondent, who had not

previously met Ms. Lindor, approached her in the teachers'

dining room and made inappropriate comments and gestures about

her body. Ms. Lindor was offended by Respondent's comments and

gestures and immediately complained to the Assistant Principal

and Principal. Respondent's inappropriate comments and gestures

towards Ms. Lindor constituted sexual harassment.

21. Madeline Vega also worked at Seminole Trails in

October of 2000. She was employed as an attendance clerk, and

met Respondent soon after he was transferred there. Respondent

made passes at Ms. Vega including asking her to go out with him.

Respondent made inappropriate comments about her body and made

inappropriate gestures to her. Ms. Vega did not welcome or

encourage Respondent's comments and gestures, and she repeatedly

told Respondent she would not go out with him. Despite those

rebuffs, Respondent's inappropriate conduct towards Ms. Vega

continued. Respondent's inappropriate comments and gestures

towards Ms. Vega constituted sexual harassment.

22. Following an investigation and recommendation from the

management committee that reviewed the investigative report,

Superintendent Benjamin Marlin recommended to the School Board

at its meeting of December 6, 2000, that Respondent's employment

be suspended and terminated, subject to Respondent's right to

request a formal administrative hearing. Superintendent Marlin,

on behalf of the School Board, filed the Administrative

Complaint that underpins this proceeding on December 22, 2000.

23. The School Board's Policy 3.27 pertains to the

procedures to be followed in the suspension and dismissal of

employees. Those procedures were followed in this proceeding.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction ever the subject matter and the parties to this

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

25. The School Board has the burden of proving the

allegations in the Administrative Complaint by a preponderance

of the evidence. See Allen v. School Board of Dade County , 571

So. 2d 568, 569 (Fla. 3d DCA 1990); and Dileo v. School Board of

Lake County , 569 So. 2d 883 (Fla. 3d DCA 1990).

26. Because there is no collective bargaining agreement

applicable to this proceeding, Respondent's employment is

subject to termination pursuant to the School Board's policies.

See Section 231.3605, Florida Statutes.

27. The School Board proved that Respondent knowingly and

repeatedly violated its policy prohibiting sexual harassment in

the fall of 2000 after having been disciplined several months

earlier for the same violation. His failure to comply with the

School Board's Policy 3.19 prohibiting sexual harassment

constitutes just cause to terminate his employment.

28. Rule 6B-1.001, Florida Administrative Code,

constitutes the Code of Ethics of the Education Profession in

Florida. Rule 6B-1.006, Florida Administrative Code, sets forth

the Principles of Professional Conduct for the Education

Profession in Florida. Rule 6B-4.009, Florida Administrative

Code, provides criteria for the suspension and dismissal of

instructional personnel. These rules pertain to members of the

instructional personnel who hold a valid teacher's certificate.

Except by analogy, those rules do not apply to Respondent, who

was an educational support employee. Consequently, his

violation of one or more of those rules does not provide an

independent basis to terminate his employment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

terminating Respondent's employment.

DONE AND ENTERED this 12th day of September, 2001, in

Tallahassee, Leon County, Florida.

_ __________________________________

CLAUDE B. ARRINGTON

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 [phone]

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 12th day of September, 2001.

ENDNOTE

1/ Section 231.3605(1)(a), Florida Statutes, provides, in

pertinent part, that the term "educational support employee"

means:

. . . any person employed by a district

school system who is employed as a teacher

assistant, an education paraprofessional, a

member of the transportation department, a

member of the operations department, a

member of the maintenance department, a

member of food service, a secretary, or a

clerical employee, or any other person who

by virtue of his or her position of

employment is not required to be certified

by the Department of Education or district

school board pursuant to s. 231.1725. . . .

COPIES FURNISHED:

Alan M. Aronson, Esquire

Palm Beach County School Board

3318 Forest Hill Road, Suite C-302

West Palm Beach, Florida 33406

Boris V. Banks

4009 Temple Street

West Palm Beach, Florida 33407

Art Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Road, Suite C-316

West Palm Beach, Florida 33406-5869

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

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.