02-001666 Pinellas County School Board vs. Natale F. Malfa Status: Closed Recommended Order on Friday, September 6, 2002.

Summary: Non-instructional supervisor who touched employee`s buttocks is guilty of sexual harassment, misconduct, and inappropriate contact, as defined in school board policy, and should be suspended without pay for five months.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1666

)

NATALE MALFA, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on June 19, 2002, in

Largo, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Jacqueline Spoto Bircher, Esquire

Pinellas County School Board

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Ted E. Karatinos, Esquire

Seeley & Karatinos, P.A.

3924 Central Avenue

St. Petersburg, Florida 33711

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section

231.3605(2)(c), Florida Statutes (2001), by engaging in

alleged harassment, inappropriate interactions with

colleagues, or mi sconduct. (All chapter and section

references are to Florida Statutes (2001) unless otherwise

stated).

PRELIMINARY STATEMENT

On April 17, 2002, Petitioner suspended Respondent

without pay from his position as a non - instructional employee

with the Pinellas County School Board (the School Board).

Respondent timely requested an administrative hearing.

At the administrative hearing, Petitioner presented the

testimony of seven witnesses and submitted 16 exhibits for

admission into evidence. Respondent pres ented the testimony

of three witnesses and submitted 21 exhibits for admission

into evidence.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the two - volume Transcript

of the hearing filed on July 10, 2002. Petitioner timely

filed its Proposed Recommended Order (PRO) on July 18, 2002.

Respondent timely filed his PRO on July 19, 2002.

FINDINGS OF FACT

1. On March 13, 2000, the School Board employed

Respondent as a Plant Operator at Seminole High School. The

Schoo l Board transferred Respondent to Tarpon Springs High

School on May 22, 2000.

2. On August 2, 2000, Respondent earned a satisfactory

evaluation from his supervisor. The evaluation stated that he

is a "hard worker," a "good team worker," and "he works well

with others."

3. On February 15, 2001, Respondent earned a Better Than

Satisfactory evaluation from his supervisor. The evaluation

stated that Respondent is a "good team worker" and is "always

willing to help others."

4. On September 17, 2001, t he School Board promoted

Respondent to Night Foreman at Cypress Woods Elementary School

(Cypress Woods). The two individuals who had previously

served as Night Foremen were Barbara Moore (Moore) and Kevin

Miller (Miller).

5. At Cypress Woods, Sharon Sisco (Sisco) was the

Principal, Marilyn Cromwell (Cromwell) was the Assistant

Principal, and Candace Faull (Faull) was the Head Plant

Operator. As Head Plant Operator, Faull supervised Respondent

as well as Moore and Miller. Each Night Foreman had "poor

co mmunication problems" with Faull.

6. Between the fall of 2000 and the spring of 2002,

Respondent, Moore, and Miller each supervised individual Plant

Operators at Cypress Woods, including Alice Mertz (Mertz).

Mertz had problems with taking instructions from each Night

Foreman and with taking complaints "over their head[s]"

directly to Faull.

7. Faull attempted to "set up" both Miller and Moore for

disciplinary action by the School Board. During the fall of

2000, the School Board received numerous compl aints from

Miller and Moore about the abuse they suffered at Cypress

Woods.

8. On October 10, 2000, Sisco issued specific directives

to Faull, instructing her "not to make or engage in negative

conversation [with] . . . the crew (or other staff) regarding

the Night Foreman." On March 14, 2001, Sisco reprimanded

Faull and again counseled her "not to make or engage in

negative conversation made by the night crew (or other staff)

about the night foreman."

9. On March 20, 2001, Cromwell instituted a Su ccess

Plan. The Plan instructed the Plant Operations crew to

"refrain from gossip and negative comments about each other."

The Plan required the Plant Operations crew to maintain a

Communications Log. During the spring of 2001, Cromwell

monitored the behavior of the Plant Operations staff through

regular meetings.

10. The Plant Operations crew continued its historical

behavior after the School Board promoted Respondent to Night

Foreman at Cypress Woods in the fall of 2001. On February 1,

2002, Respon dent earned a Better Than Satisfactory evaluation

from Sisco. The evaluation stated that Respondent is a "great

team worker" who "gets along with staff."

11. On February 28, 2002, Respondent touched Mertz on

her buttocks in the break room at Cypress Woods in the

presence of at least two other people in the room. The

physical contact occurred when Mertz walked past Respondent on

her way out of the break room.

12. Respondent admits that his hand made contact with

the buttocks of Mertz. However, Respond ent claims that the

contact was incidental, not intentional, not inappropriate,

and did not satisfy the definition of sexual harassment.

13. Mertz did not confront Respondent but left the room.

However, Mertz later filed a sexual harassment complaint with

her employer.

14. Campus police investigated the matter on March 1,

2002. The investigation included statements from Mertz,

Respondent, and Mr. Todd Hayes (Hayes), one of the individuals

who was present in the break room at the time of the inciden t.

All three testified at the administrative hearing and provided

written statements during the investigation. Mertz and

Respondent also provided deposition testimony during pre -

hearing discovery. Respondent also provided an additional

statement on March 5, 2002, during an interview with Michael

Bissette (Bissette), Administrator of the School Board's

Office of Professional Standards (OPS).

15. On March 18, 2002, Bissette determined that

Respondent had committed harassment, inappropriate

interaction, an d misconduct in violation of School Board

Policy 8.25(1)(m), (p), and (v), respectively. School Board

Policy 8.25(1)(m), (p), and (v) authorizes disciplinary action

for each offense that ranges from a caution to dismissal.

Bissette recommended to the Superintendent of the School Board

that the School Board dismiss Respondent from his employment.

16. By letter dated March 18, 2002, the Superintendent

notified Respondent that Respondent was suspended with pay

from March 13, 2002, until the next meeting o f the School

Board on April 16, 2002. If the School Board were to adopt

the recommendation of dismissal, the effective date of

dismissal would be April 17, 2002. Respondent requested an

administrative hearing, and the School Board suspended

Respondent without pay on April 17, 2002, pending the outcome

of the administrative hearing.

17. Some inconsistencies exist in the accounts provided

by Mertz. For example, Mertz claims in her testimony that the

incident occurred "around 2:30 p.m." The investigation report

by the campus police shows that Mertz claimed the incident

occurred around 3:00 or 3:30 p.m.

18. Other inconsistencies exist between the accounts by

Mertz and Hayes. For example, Mertz testified that five

people were in the break room at the time of the incident and

that she did not confront Respondent or say anything to

Respondent. Hayes recalls that only four people were in the

room and that Mertz did turn and say something to Respondent

such as, "Oh stop it."

19. Inconsistencies regarding t he time of the incident,

the number of people in the break room, and whether Mertz said

anything to Respondent at the time are not dispositive of the

material issues in this case. The material issues are whether

the physical contact by Respondent was intentional, sexual,

and offensive, whether it was inappropriate, and whether it

constituted misconduct within the meaning of School Board

Policy 8.25(1)(m), (p), and (v), respectively.

20. Respondent claims that he touched Mertz accidentally

while he was putting his keys into a pocket at the particular

time that Mertz walked in front of Respondent. Mertz walked

between Respondent and Hayes in a manner that prevented Hayes

from observing the actual contact by Respondent. However,

Hayes did observe Respondent's movements up to the time of the

actual contact.

21. When Respondent was approximately a foot away from

Mertz, Respondent moved his left hand from his side in an

upward direction with his palm up and fingers extended to a

point within an inch or so of the right buttock of Mertz.

Respondent's arm was always extended and did not move in a

sideways direction that would have occurred if Respondent had

been putting keys into his pocket or reaching for keys in his

pocket or on his belt. Respondent had a smirk on his face and

laughed. The testimony of Hayes at the administrative hearing

concerning Respondent's hand and arm movements was consistent

with the accounts by Hayes in two written statements provided

during the investigation.

22. Mertz felt Resp ondent grab her right buttock. She

felt Respondent's hand tighten on her buttocks. Mertz did not

feel Respondent inadvertently touch her. The physical contact

Mertz felt on her buttocks was consistent with the

observations by Hayes. The testimony of Mertz at the

administrative hearing concerning the physical contact is

consistent with accounts by Mertz in three written statements

provided during the investigation and in her pre - hearing

deposition.

23. Respondent's testimony concerning his hand movemen ts

in the break room does not possess the consistency present in

the accounts by Mertz and Hayes. When asked on direct

examination what happened, Respondent testified:

A. I was walking towards the cabinet to

get the flags after we'd had a meeting, to

leave; she walked by me -- I -- walked

behind her. I had my keys clipped to my

right side of my belt and they were

flopping against my leg.

I wasn't going to need my keys so I started

to reach over with my left hand to open my

pocket because I had my keys i n my right

hand to put them in, because my pants were

tight and there was a top pocket to put

them in and as my hand came up and around

that's when I hit her, I brushed against

her.

Transcript (TR) at 284.

24. On cross - examination, counsel for Petitioner asked

questions that provided Respondent with an opportunity to

reconcile his testimony with ostensibly divergent accounts

during the investigation.

Q. The day after the incident you wrote a

statement for the police officer, didn't

you?

A. Yes, I d id.

Q. And in the statement you said Ms. Mertz

asked you to grab her can, didn't you?

* * *

A. Yes, this is what I wrote but I

misquoted it. She said that she was going

to grab her can.

Q. But you wrote in the statement that

Alice said, grab my can? Is that what you

wrote?

A. That's what I wrote but that "my" is

her, not me.

* * *

Q. Let me ask you . . . Did you write in

your statement, "and with my left hand I

whacked at her to say, hey"?

A. Yes. But I was using that as a

description on the type of motion it was.

It was like a, you know, a hey, type of

motion that I came across.

TR at 285 - 286.

25. In Respondent's initial written statement to campus

police, Respondent wrote that he whacked at Mertz with his

"open" left hand as if to say hey but did not know where

contact was made. In a second written statement to campus

police, Respondent wrote that he whacked at Mertz with the

"back" of his left hand. In an interview with Sisco,

Respondent cl aimed that he and Mertz were just joking. During

direct examination, Respondent did not testify that he whacked

at Mertz as if to say "hey." Rather, Respondent testified

that his left hand inadvertently came in contact with Mertz as

a result of Respondent reaching for his keys.

26. The account provided by Respondent during direct

examination at the hearing is consistent only with

Respondent's testimony in his pre - hearing deposition. The

statements given during the investigation are closer in time

to t he actual event.

27. The actions of Hayes and Mertz immediately following

the incident are consistent with their testimony that

Respondent intentionally grabbed the buttocks of Mertz in a

sexual manner. Hayes asked another individual in the break

room if she had observed the incident. He later reported the

incident to Faull before speaking to Mertz. Mertz was

initially shocked and left the break room; she later reported

the incident to her employer.

28. The physical contact by Respondent created an

o ffensive environment for Mertz. Mertz was initially

completely in shock. She then became angry and eventually

became so angry she "wanted to strangle" Respondent. Mertz

cried and was very upset when she completed a written

statement for Sisco. She did not tell her husband immediately

because she did not want to upset him.

29. Respondent's physical contact with Mertz constituted

sexual harassment within the meaning of School Board Policies

8.24 and 8.241. The physical contact was "unwanted sexual

at tention," "unwanted physical contact of a sexual nature,"

and "physical contact" that had the purpose of creating an

"offensive environment" within the meaning of School Board

Policies 8.24(2)(a), (2)(b)4, and 8.241(2)(a)1, respectively.

30. Respondent's physical contact with Mertz violated

the prohibitions in School Board Policy 8.25(1)(m), (p), and

(v). The physical contact was harassment that created an

offensive environment in violation of School Board Policy

8.25(1)(m). It was an inappropriate inte raction that violated

Policy 8.25(1)(p). It was misconduct that violated Policy

8.25(1)(v).

31. Respondent has no prior disciplinary history. The

physical contact engaged in by Respondent is his first offense

and is a single isolated violation of applicable School Board

policy.

32. Respondent has never asked Mertz on a date, never

seen her outside work, never made any sexual comments either

to her or about her, and has never touched her when they were

working alone together on the night shift.

CONC LUSIONS OF LAW

33. DOAH has jurisdiction over the parties and the

subject matter. Section 120.57(1). The parties received

adequate notice of the administrative hearing.

34. Respondent is an "educational support employee"

within the meaning of Section 231.3605(1)(a). Petitioner has

the authority to discharge an educational support employee,

and any appeal by the employee may be governed by Petitioner's

rules. Section 231.3605(2)(c) .

35. Petitioner has the burden of proof in this case.

Petitioner mu st show by a preponderance of the evidence that

Respondent committed the offenses with which he is charged and

the reasonableness of any proposed penalty. MacNeill v.

Pinellas County School Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996).

36. Petitioner showed by a preponderance of the evidence

that Respondent engaged in sexual harassment, defined in

School Board Policies 8.24(2)(a), (2)(b)4, and 8.241(2)(a)1;

and violated School Board Policy 8.25(1)(m), (p), and (q).

The testimony of Mertz and Hayes was cr edible and persuasive

and consistent over time as to their description of

Respondent's hand and arm movements in the break room on

February 28, 2002. Respondent's various explanations of what

transpired in the break room were neither credible nor

persuasive. They were ambiguous as to detail and inconsistent

over time. Evidence of long - standing personnel issues

involving three night foremen, including Respondent, Faull,

and workers they supervised was not sufficient to impeach the

testimony of Mertz and H ayes or to show that either was

motivated to lie under oath.

37. Petitioner failed to show by a preponderance of the

evidence that the proposed penalty is reasonable. The

penalties authorized for violations of School Board Policy

8.25(1)(m), (p), and (q) range from caution to dismissal. The

penalties are reasonably presumed to be progressive. This was

Respondent's first offense and was a single isolated incident.

Respondent's employment history is otherwise exemplary.

38. Petitioner has an array of other disciplines

available to it that are appropriate to the facts and

circumstances in this case. One of those disciplines includes

suspension without pay. Petitioner has suspended Respondent

without pay for what will be five months on September 17,

2002. Suspension without pay for a period of five months is a

reasonable discipline under the facts and circumstances of

this case. The imposition of any greater discipline, under

the facts and circumstances of this case, is an abuse of

agency discretio n and is not supported by the facts and

circumstances in this case.

39. Petitioner could have insulated itself from the need

to exercise agency discretion by charging Respondent with

engaging in inappropriate sexual behavior in violation of

School Board Policy 8.25(1)(a). Dismissal is the only

discipline authorized for a violation of School Board Policy

8.25(1)(a), irrespective of whether the violation is a first

offense. Petitioner chose not to charge Respondent with

violating School Board Policy 8.25( 1)(a), but seeks to punish

Respondent in the same manner as if Respondent had violated

School Board Policy 8.25(1)(a). During his testimony at the

administrative hearing, the OPS Administrator failed to

adequately explicate any intelligible standards or emerging

agency policy that justifies the proposed exercise of agency

discretion.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of the thr ee charged offenses, suspending

Respondent without pay from April 17 through September 17,

2002, and reinstating Respondent to his former position on

September 18, 2002.

DONE AND ENTERED this 6th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

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 6th day of September, 2002.

COPIES FURNISHED:

Jacqueline Spoto Bircher, Esquire

Pinellas County School Board

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

Ted E. Karatinos, Esquire

Seeley & Karatinos, P.A.

3924 Central Avenue

St. Petersburg, Florida 33711

Dr. Howard Hinesley, Superintendent

Pinellas County School Board

301 Fourth Street, Southwest

Largo, Florida 33770 - 3536

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 Recom mended Order should be filed with the

agency that will issue the Final Order in this case.