03-004284 Donald Allen vs. Florida Agricultural And Mechanical University Status: Closed Recommended Order on Friday, June 4, 2004.

Summary: Petitioner violated Rules 6C3-10.103(6)(b) and 6C3-10.230, Florida Administrative Code, by engaging in quid pro quo sexual harassment of one of his students, which further amounted to misconduct as a professor. Recommend Petitioner`s dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD ALLEN, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4284

)

FLORIDA AGRICULTURAL AND )

MECHANICAL UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on April 1, 2004, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: H. B. Stivers, Esquire

Levine, Stivers & Myers

245 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Linda Barge - Miles, Esquire

Florida A & M University

Office of the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

STATEMENT OF 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.

PRELIMINARY STATEMENT

On November 10, 2003, Petitioner filed a Formal Protest

Petition and Request for Hearing with Respondent which

challenged the disciplinary action that had been taken against

him. The matter was referred to the Division of Administrative

Hearings. The Initial Order was entered on November 18, 2003.

By a Notice of Hearing dated November 24, 2003, a final hearing

was scheduled for February 20, 2004. On February 17, 2004,

Respondent filed an Emerg ency Motion for Continuance based on

the unavailability of an indispensable witness. On February 18,

2004, the motion was granted and the hearing was rescheduled for

April 1, 2004, and was held as scheduled.

The parties filed their Joint Pre - hearing Sti pulation which

provides, in pertinent part, that as the party seeking to

terminate Petitioner’s employment, Respondent must prove, by a

preponderance of the evidence, that it had just cause to

terminate Petitioner’s employment.

At the final hearing, Respon dent presented the live

testimony of Carrie Gavin, Director of the Office of Equal

Opportunity Programs; Dr. Larry E. Rivers, Dean of the College

of Arts and Sciences; and David M. Voss, Assistant to the

Provost for Faculty Relations. Respondent also pres ented the

videotaped deposition of Brandi McSwain, a former student at

Florida A & M University. Respondent offered Exhibits

numbered 1 through 12, all of which were received into evidence.

Petitioner testified on his own behalf, and presented the

deposi tion testimony of Dr. Yvonne Bell, Chairperson of the

Department of Psychology. Petitioner offered Exhibits

numbered 1 through 5, all of which were received into evidence.

By Stipulation and subsequent Order, Petitioner’s Exhibit 1 was

provided to the u ndersigned on April 15, 2004.

A Transcript of the hearing was filed on April 14, 2004.

The parties agreed at the conclusion of the hearing that the

proposed findings of fact and conclusions of law would be

due 20 days from the date of the filing of the transcript. On

April 29, 2004, Respondent filed a Stipulated Motion to Extend

Time to File the Proposed Recommended Orders which was granted.

The proposed recommended orders were due May 12, 2004. The

parties have timely filed their Proposed Recommende d Orders.

References to statutes are to Florida Statutes (2003)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Dr. Donald Allen, was hired by Respondent,

Florida A & M University, as an associate professor in 1993.

2. Three to four years later, Petitioner attained the

status of tenured professor, which he held until his termination

from employment on September 18, 2003.

3. Petitioner is also known as Dr. Daudi Ajani ya Azibo.

4. 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, Respond ent’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.

5. 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.

6. 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.

7. 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. E ach of the four

students, except Ms. McSwain, passed the final two tests.

8. 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 hour s

in an adjacent classroom.

9. 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 th e 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.

10. 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, al ong 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.

11. During the telephone conversation, a discussion took

place between Dr. Allen and Ms. McSwain concern ing 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.

12. Petitioner told Ms. McSwain that he did not trade sex

for grades.

13. 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.

14. 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 go t to be kidding. There is no way

you want me on you. I’m short, fat, bald, and 50.”

15. 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.”

16. 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.

17. Petitioner and Ms. McSwain exchang ed 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.

18. Petitioner and Ms. McSwain met at the Al bertson’s,

then proceeded to the Super 8 Motel down the street, arriving

around midnight.

19. Petitioner proceeded to rent the room in his own name,

paying cash, while Ms. McSwain waited in her car.

20. Petitioner came out to Ms. McSwain’s car and told h er

the room number, then he went up to the motel room. Ms. McSwain

joined him in the room a few minutes later.

21. 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.

22. 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 repe atedly told Ms. McSwain that this was

not about grades and that he refused to trade sex for grades.

23. 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 Pe titioner lasted

approximately 30 minutes.

24. 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.”

25. At some point in the motel room, before any actual

sexual intercourse took p lace, 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.

26. 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.

27. The audiotape of the meeting at the hotel is largely

inaudible, although enough of it is audible to make the

following conclusions:

A. Approximately 10 minutes into the tape, Ms. Mcswain

states she is trying to get an “A.”

B. Approximately 12 minutes into t he tape, Dr. Allen says,

“not related to grade”; Ms. McSwain responds that she is trying

to get a good grade.

C. Approximately 13 minutes into the tape, Dr. Allen

states he does not swap grades for sex.

D. Approximately 14 - 15 minutes into the tape, Ms. M cSwain

states that she is not having sex unless she gets a grade.

E. Approximately 15 minutes into the tape, Ms. McSwain

states she wants an “A,” then asks “I’ll get an ‘A’ if I have

sex?”

F. Approximately 17 minutes into the tape, Ms. McSwain

states, “i f I don’t get an ‘A,’ I’m not going to do it.”

G. 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.

H. 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.”

I. Approximately 31 minutes into the tape, Ms. McSwain

leaves the motel room.

28. Petitioner has had no contact with Ms. McSwain since

November 24, 2002.

29. Ms. McSwain did not return to the Black Psychology

class for the remainder of the semester following their

encounter at the motel.

30. 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.

31. Ms. Gavin advised Ms. McSwain of Respondent’s rules

and regulations and provided her with a form for filing a formal

complaint against Petitioner.

32. Ms. Gavin met with Ms. McSwain again on December 4,

2002, at which tim e 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.

33. Petitioner completed his grades on December 13 or 14

and submitted them to Respondent on or before December 16, 2002.

34. On December 17, 2002, Ms. McSwain filed a complaint of

sexual harassment against Petitioner, after Petitioner’s grades

had been posted.

35. Ms. Gavin notified Petitioner of the filing of the

formal complaint by Ms. McSwain.

36. Petitioner filed a written response to the allegations

of the formal complaint.

37. Ms. Gavin conducted an investigation into the

allegations of Ms. McSwain’s complaint and concluded that “there

was merit to the complaint.”

38. The report generated by Ms. Gavin re commended that

Petitioner should be terminated from employment because of prior

disciplinary action pursuant to Rule 6C3 - 10.103, Florida

Administrative Code.

39. The report found that Petitioner had engaged in quid

pro quo sexual harassment and had create d 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.

40. 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.

41. Ms. Gavin indicated that over the last five years,

five or s ix 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.

42. Respondent believes in t he 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.

43. 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

c omplaint against him.” Also contained in that letter was

language stating that any further infractions could lead to

termination.

44. Dr. Larry Rivers, Dean of Respondent’s College of Arts

and Sciences, was informed of Ms. McSwain’s sexual harassment

com plaint 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 c lass.

45. Petitioner issued Ms. McSwain a grade of “I”

(incomplete) in the Black Psychology class.

46. Ms. McSwain enrolled in one class during the summer

semester 2003, but failed to complete it. She withdrew from the

University in July 2002.

47. 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 rela tionship, other than an academic one, with a

student. The teacher - student relationship is one based upon

power, with the teacher wielding the power.

48. Respondent has no rule or regulation that prevents a

faculty member from having a consensual relation ship with an

adult (greater than age 18) student.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

50. As the party seeking to termin ate Petitioner’s

employment, Respondent must prove, by a preponderance of the

evidence, that the allegations which form the basis for the

termination are true. Allen v. School Board of Dade County , 571

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

51. Pursuant to the J oint Prehearing Stipulation filed by

the parties, the issues to be determined are whether Petitioner

placed a student in a “ quid pro quo ” sexual harassment situation

and/or whether Petitioner’s conduct unreasonably interfered with

a student’s educational p erformance by creating an intimidating

educational environment in violation of Rule 6C3 - 10.103, Florida

Administrative Code. Also to be determined is whether

Petitioner’s actions amounted to misconduct in violation of

Rule 6C3 - 10.230, Florida Administrat ive Code.

52. Rule 6C3 - 10.103, Florida Administrative Code, governs

the determination of whether sexual harassment occurred in this

matter. It provides, in pertinent part, as follows:

(6)(b) Harassment shall include:

1. Any slurs, innuendoes or other v erbal or

physical conduct reflecting on an

individual’s race, ethnic background, gender

or handicap condition which has the purpose

or effect of creating an intimidating,

hostile or offensive educational or work

environment; has the purpose or effect of

un reasonably 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, employm ent,

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 th e 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.

53. Sexual harassment cases based upon carried - out threats

by super visors often are referred to as “ quid pro quo ” cases.

Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 753

(1998). To establish a prima facie claim for sexual harassment

under a theory of quid pro quo , Petitioner has the burden of

proving the follow ing by a preponderance of the evidence:

(a) she belonged to a protected class; (b) she was subjected to

unwelcome sexual harassment; (c) the harassment was based on

sex; (d) the student’s reaction to the harassment affected

tangible aspects of the studen t’s educational status; and

(e) Dr. Allen knew or should have known of the harassment and

took no remedial action. See , e.g. , Polly v. Houston Lighting &

Power Co. , 803 F. Supp. 1, (S.D. Tex. 1992), adopted in part ,

summary judgment granted in part , 825 F. Supp. 135 (S.D. Tex.);

Spencer v. General Electric Co. , 894 F.2d 651 (4th Cir. 1990);

Sparks v. Regional Medical Center Bd. , 792 F. Supp. 735 (N.D.

Ala. 1992).

54. In a matter such as this, the issue that must be

addressed is whether Ms. McSwain, by he r conduct, indicated that

the alleged sexual advances were unwelcome, not whether her

participation in them was voluntary. Meritor Savings Bank, FSB

v. Vinson , 106 S. Ct. 2399 (1986).

55. Petitioner is correct when he states that Respondent

has no statut es, rules or regulations that prohibit a consensual

relationship between a member of the Florida A & M faculty and a

student over the age of 18. However, the existence of such a

relationship must be carefully scrutinized when a student

complains of harass ment to determine whether, in fact, the

relationship is truly voluntary and consensual. In the present

case, I do not find the relationship to be truly voluntary and

consensual.

56. The relationship between a teacher and a student, even

an adult student, is inherently unequal and is one in which the

teacher operates from a position of great power, especially when

the student is a member of a class being taught by the

professor. The testimony of Dr. Larry Rivers, Dean of the

College of Arts and Sciences, and a long - time member of the

Florida A & M faculty, who stated that he believes no serious

social or sexual relationships should exist between a professor

and one of his or her students is persuasive. Dr. Rivers has

consistently educated his professors i n this regard. In order

for such a relationship to be truly consensual, the student must

not participate in a class taught by the professor with whom he

or she has the relationship since the temptation for abuse and

harassment is too great to ignore.

57. There are numerous significant inconsistencies in

Ms. McSwain’s deposition testimony, most especially her failure

to acknowledge that she received a failing grade on the test in

question, and her statement that she was in the motel room with

Dr. Allen f or no more than five minutes when her own audiotape

of the rendezvous clearly negates this alleged fact. Further,

Petitioner’s testimony is more credible concerning the fact that

Ms. McSwain initiated the offer of sex for an “A” grade. The

fact that Peti tioner asked Ms. McSwain to write her telephone

number on her test paper so that he could contact her, in and of

itself, is not persuasive of his intent to initiate a quid pro

quo sexual relationship. Her offer “to do anything” to improve

her grade on the exam demonstrates her willingness to initiate a

sexual relationship with Petitioner for one reason only, to

improve her grade in Petitioner’s class and, perhaps, to thereby

help save her Florida Bright Futures Scholarship which was in

jeopardy of being re voked for failure to maintain the required

grade point average.

58. The fact that Ms. McSwain repeatedly stated that she

expected to receive an “A” for participating in a sexual liaison

with Petitioner lends credence to the fact that this was purely

a qui d pro quo situation. I am not persuaded by Petitioner’s

claims that Ms. McSwain repudiated her request for a higher

grade by making statements such as, “I like having sex with

older dudes,” or “I only want to have sex with you.” These

statements were mad e so near in time to her request for an “A”

in exchange for sex, that no reasonable person could separate

them. Even in the motel room, Ms. McSwain, at each escalation

of the sexual encounter, repeatedly asked if she were going to

get her “A” if she perfo rmed one sexual act or another. The

fact that Petitioner may have repeatedly told Ms. McSwain that

he was not trading an “A” for sex, is not enough to negate her

clear understanding and intent to initiate sex with Petitioner

for one reason only, to receiv e an “A” on the test she had

failed when she was caught cheating in Petitioner’s class.

59. Respondent has proven, by a preponderance of the

evidence, that the relationship was not consensual. In the

employment context, courts have largely held that, in cases of

consensual relationships, where there is no mention of

employment issues, a quid pro quo claim cannot be established.

See , e.g. , Walker v. Sullair Corp. , 736 F. Supp. 94 (W.D. N.C.

1990), aff’d in part without op. and rev’d in part without op.

on other grounds , 946 F.2d 888 (4th Cir.); Koster v. Chase

Manhattan Bank , 687 F. Supp. 848, (S.D. N.Y. 1988); Grubka v.

Dept. of Treasury , 858 F. 2d 1570 (Fed. Cir. 1988), later

proceeding , 924 F.2d 1039; Reichman v. Bureau of Affirmative

Action , 536 F. Sup p. 1149 (M.D. Penn. 1982). Applying the

employment cases to this academic context, “employment issues”

(or, more accurately here, educational issues) were constantly

on or just below the surface of every conversation between

Dr. Allen and Ms. McSwain. S tatements like “I’ll do anything

for a grade; Do I get my ‘A’ now? After I do this do I get my

‘A’?” clearly bring the academic issue of improving her grade

into the motel room. To believe otherwise would be ingenuous,

at best.

60. Respondent has clearl y made a prima facie showing of a

quid pro quo sexual harassment case by proving each of the five

elements. Ms. McSwain belongs to a protected group, namely, she

is a student covered by Rule 6C3 - 10.103, Florida Administrative

Code. She was subject to unw elcome sexual harassment in that

she offered sex only to improve her grade, not, as Petitioner,

repeatedly asserts, because she had a crush on him. The

harassment complained of was based on sex. Ms. McSwain’s

reaction to the sexual harassment affected ta ngible aspects of

her educational status: she expected to receive a higher grade

if she had sex with Petitioner. In fact, Ms. McSwain waited

until December 17, 2002, the day after grades were posted for

Petitioner’s class, to file her sexual harassment co mplaint.

Clearly, she expected to receive her “A” from Petitioner in

exchange either for the preludes to sex she performed with

Petitioner in the motel room or for the fact she still had the

audiotape of the encounter in her possession. Petitioner knew

o r should have known of the harassment and took no effective

remedial action. Other than stating to Ms. McSwain that the

sexual encounter in the motel room would not result in a better

grade, he continued to pursue the relationship in the face of

her repea ted requests for an “A” in exchange for various sexual

acts.

61. The fact, as asserted by Petitioner, that Ms. McSwain

attempted to “catch” him doing something wrong when she taped

their encounter in the motel room is irrelevant to the issue of

whether Pe titioner sexually harassed Ms. McSwain. Petitioner

knew or should have known that Ms. McSwain met him in the motel

room to “do anything” to get her “A.” Petitioner’s refusal to

actually give Ms. McSwain the “A” fails to negate the fact that

he knew that was her precise demand of him if sex with him were

to become a reality.

62. Respondent dismissed Petitioner from his employment as

a tenured professor on the basis of this being his second

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

Petitio ner’s first violation occurred in 1997 when he was

reprimanded for retaliating against several students through his

providing a class survey “to those students who had not filed

discrimination charges against him.” At that time, Petitioner

was informed th at any future violations of Rule 6C3 - 10.103,

Florida Administrative Code, would result in further

disciplinary action taken against him, which could include

dismissal. Respondent’s policy has been to reprimand a

professor for a first violation of Rule 6C3 - 10.103, Florida

Administrative Code, then to dismiss the professor for a second

violation. The recommended penalty of dismissal in this case is

consistent with Respondent’s prior employment disciplinary

practices.

63. In addition to Respondent’s allegat ions that

Petitioner engaged in quid pro quo sexual harassment of a

student, it has alleged that Petitioner’s actions amounted to

misconduct in violation of Rule 6C3 - 10.230, Florida

Administrative Code. This rule provides, in pertinent part,

that:

(5) Th e President or President’s designee

may discipline a faculty or A & P employee

for just cause in accordance with the

provisions set forth herein. Counseling of

any nature or degree shall not be considered

disciplinary action.

* * *

(a) Just cause shall be defined as:

* * *

2. Misconduct.

64. The rule fails to define the term “misconduct,” and

Respondent admits that the collective bargaining agreement that

was in effect at the time of the incident and defined

“misconduct” is no longer in effect at F lorida A & M. Black’s

Law Dictionary defines “misconduct” as “a transgression of some

established and definite rule of action, a forbidden act, a

dereliction from duty, unlawful behavior, willful in character,

improper or wrong behavior.” A professor att empting to

establish a sexual relationship with one of his students,

especially when he knows the student is expecting an improved

grade as a consequence of the relationship, certainly fits

within the dictionary definition of “misconduct.” Further, the

fa ct that Petitioner’s actions constitute a quid pro quo sexual

harassment situation in violation of Rule 6C3 - 10.103(6)(b),

Florida Administrative Code, meets the definition of

“misconduct” as a transgression of an established rule, as well

as a forbidden ac t and improper or wrongful behavior.

65. Florida A & M University has a legal duty to provide a

learning environment that is free from discriminatory behavior.

The University can do this only by strict enforcement of its

rules and by holding its faculty and staff accountable for their

actions. The relationship between Petitioner and Ms. McSwain

was not consensual. The preponderance of the evidence supports

the conclusion that Ms. McSwain was interested in engaging in

sex with Petitioner only in exchange for a better grade on the

test she had failed when she was caught cheating. Petitioner’s

claims that he knew Ms. McSwain wanted to have sex with him

regardless of whether he altered her grade are exceedingly

difficult to believe. The fact that he repeat edly rebuffed her

inquiries concerning the “A” she sought, yet still chose to

believe she wanted a sexual relationship with no strings

attached is little more than the wanton fantasy of a lecherous

man. It is a fantasy based neither on reality nor common sense.

66. Respondent has applied its disciplinary procedures in

this instance consistently with its prior practices. Petitioner

has violated Rule 6C3 - 10.103, Florida Administrative Code, on

two occasions, and his dismissal as a tenured professor,

althou gh harsh, is supported by the evidence and prior practice

of Florida A & M University. Additionally, Petitioner’s

violation of Rule 6C3 - 10.103, Florida Administrative Code, as

well as his violation of several other accepted definitions of

the term “miscon duct” results in a finding that he has violated

Rule 6C3 - 10.230, Florida Administrative Code, and further

supports his dismissal from the University.

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, 200 4.

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 - 31 00

Avery D. McKnight, Acting General Counsel

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307 - 3100

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.