03-004410 Escambia County School Board vs. Sam Scallan Status: Closed Recommended Order on Tuesday, March 30, 2004.

Summary: Recommend termination of Respondent based upon repeated sexual incidents in the workplace.

Case No. 03-4410

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

SAM SCALLAN,

Respondent.

Pursuant to notice, the Division of Administrative Hearings,

by its designated Administrative Law Judge, Florence Snyder Rivas,

conducted a formal hearing in the above-styled case on February

12-13, 2004, in Pensacola, Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501-3125

For Respondent: Debra Dawn Cooper, Esquire

1008 West Garden Street

Pensacola, Florida 32501

STATEMENT OF THE ISSUE

At issue is whether there is just cause to terminate

Respondent's employment contract.

PRELIMINARY STATEMENT

Escambia County School Board (Petitioner or School Board),

decided to terminate the employment of Respondent, Sam Scallan

(Respondent or Scallan), effective November 10, 2003. The School

Board's action was predicated upon violations of Escambia County

School Board Rule 2.05, an ethics policy which prohibits offensive

sexual innuendo in the workplace. Scallan timely asserted his

right to challenge the School Board's decision to terminate his

employment.

The identity of witnesses and exhibits and attendant rulings

are reflected in the two-volume transcript filed March 4, 2004.

The parties timely filed Proposed Recommended Orders, which have

been carefully considered in the preparation of this Recommended

Order.

Unless otherwise specified, throughout this Recommended Order

all references to Sections are to Florida Statutes, and all

references to Rules are to the Florida Administrative Code.

FINDINGS OF FACT

1. Scallan has been employed by the School Board since

November 1976. He began his career as an assistant to the

Director of the Internal Funds Department.

2. Over the years the department evolved into what is now

the Department of Internal Auditing. Scallan served for over two

decades as the Director of Internal Auditing, a position to which

he was promoted about four years after starting with the School

Board.

3. Scallan's position is one of utmost trust, responsibility

and power. He is one of only three of Petitioner's 5000 employees

who report directly to the elected School Board. The vast

majority of Petitioner's employees report to and are evaluated by

individuals who, instead, are accountable to fellow staff members.

4. Scallan, on the other hand, is accountable to the School

Board through an audit committee which is comprised entirely of

volunteers.

5. At all times material to this case, Scallan supervised

six employees including two internal auditors, a departmental

secretary, an inventory clerk and two part-time university

students known as co-op students.

6. As Director of Internal Auditing, Scallan was employed

under a contract for a 12-month term commencing July 1, 2003, and

concluding June 30, 2004. The contract is subject to all laws,

rules, regulations, are policies governing Petitioner and its

employees. The contract specifically provided that the School

Board may suspend or remove the employee for cause as provided by

law.

7. At all times material to this case, Scallan knew or

should have known of his responsibility under the School Board's

ethics policy and relevant state rules to refrain from offensive

sexual innuendo in the workplace.

8. In addition, as a supervisor, Scallan was obliged to

apprise and train his staff annually with regard to the ethics

policy, and other School Board policies.

9. Scallan did not take this training responsibility

seriously. Instead, he regarded it as "the school district's way

of making sure they've legally complied with some requirements."

Scallan limited his enforcement activity to collecting employees'

signatures annually on a form in which employees acknowledge

awareness of district policies then in place.

10. Scallan also failed to take seriously his responsibility

to refrain from offensive sexual innuendo in the workplace.

11. On September 5, 2003 one of Scallan's employees filed a

formal complaint concerning Scallan's use of offensive sexual

innuendo in the workplace. Following an internal investigation,

Scallan was suspended with pay. The School Board thereafter

decided to terminate his employment, effective November 10, 2003.

12. At hearing, the School Board proved by a preponderance

of evidence that Scallan engaged in offensive sexual innuendo in

the workplace on at least eleven occasions in the presence of at

least seven employees, as follows:

Tiffany Barton:

13. At the time of the hearing, Tiffany Barton (Barton), a

graduate of California State University with a degree in business

administration, was employed by the School Board as an accountant.

She was hired in 2002 to work as an internal auditor, with Scallan

as her direct supervisor.

14. February 14, 2003 (Valentine’s Day) fell on a Friday.

Various employees made small talk throughout the day about their

holiday plans.

15. Barton inquired of Scallan how he and his wife

celebrated Valentine’s Day. Scallan responded by stating that

[she] gives him a “blow-job,” and left immediately thereafter.

Scallan flatly denied making this comment, but his denial is not

credited. Barton was shocked and embarrassed, and brooded about

the comment over the weekend.

16. The following Monday, Barton reported the exchange to a

co-worker, Jeanie Pilgram (Pilgram), expressing her embarrassment

and concern.

17. Weeks later, Scallan overheard Barton and a co-worker,

Scott Woody, discussing the publicity surrounding the musical

group Dixie Chicks and their semi-nude appearance on the cover of

a national magazine. The word "buxom" was used to describe one of

the singers.

18. Scallan interjected himself in the conversation,

commenting to the effect that "if you look up the word ‘buxom’ in

the dictionary you will see Tiffany’s picture."

19. Barton reasonably viewed the "buxom" comment to be an

escalation of his Valentine's Day vulgarity in that Scallan had

now personalized the physical appearance in a sexual context of a

celebrity with a reference to Barton's body. Barton reasonably

believed that such an analogy was inappropriate to the employer-

employee relationship.

20. Barton expressed her offense to Scallan, but Scallan

persisted, insisting his remark was a compliment. Barton "[tried]

to kind of give him a subtle hint like this is off limits. My

boss should not be talking about my body." The subtlety was lost

on Scallan.

21. On the evening of a conference in Jacksonville, Scallan

advised Barton that "whatever would happen in Jacksonville stays

in Jacksonville." Barton reasonably interpreted this comment as

encouragement to "get wild, have some fun, do whatever in your off

hours while you're away from home, whatever happens there, nobody

is going to come back and talk about it," including, presumably

Scallan himself, who was also scheduled to attend the conference.

22. April 23, 2004, was Barton's wedding anniversary. Her

co-workers, including Scallan, were aware of the occasion and that

Barton had arranged a baby-sitter, dinner reservations, and

inquired of her colleagues regarding a beach upon which they could

take an after dinner walk. The following day, Scallan asked of

Barton, Did you get lucky?”

23. In addition to directing inappropriate comments toward

Barton, Scallan directed unwanted attention toward her. For

example, co-op student Kelly Chamberlin (Chamberlin) was

disturbed--reasonably so--by Scallan's references to Barton in a

high pitched voice saying, "oh Tiffany, oh Tiffany." Chamberlin

felt this was "just not right."

24. In late August 2003, Barton was preparing to transfer

from Scallan's department to her current position, where she works

for Linda Lewis (Lewis), a former friend and employee of Scallan's

about whom more will be said below. Again, Barton was subjected

to sexual innuendo in violation of School Board policy.

Specifically, Scallan remarked on Barton's ’s “great cleavage" and

further commented that she was an "attractive person," adding that

he liked working with attractive people. Scallan further stated

that he was sure Lewis had selected Barton for Barton's analytical

skills.

25. So far as Barton is aware, the comments set forth in

paragraph 24 were not heard by third parties. Yet, the following

morning, Scallan, in the presence of other members of his

department, stated that "while lying in bed the night before"

thinking about what he had said about [Barton's] cleavage, he had

determined that he should apologize. He went on to state, as he

had to Barton privately, that he liked working with attractive

people; that she [Barton] was attractive; and that she was very

analytical which is undoubtedly why Lewis wanted her for her

department.

26. Later that week, Scallan encountered Barton in a break

room lunching with a colleague. He approached, put his hand on

her shoulder, and again made comments about Barton being missed,

her analytical skills, and why she had been hired by Lewis.

Barton interrupted, hoping to head off a third round of comments

about her attractiveness.

27. On August 27, 2003, Barton confronted Scallan in his

office explaining how upset she had been because of his comments

that had occurred not only that week but during her previous

months of employment. Scallan acknowledged the impropriety of his

comments, stating that he sometimes likes to say things for "shock

value."

28. Barton thereafter spoke with district officials about

filing a formal complaint. Barton was encouraged to, and did,

take the Labor Day weekend to consider whether she wanted to

proceed on a complaint. Following discussion with her husband,

she decided to do so.

Linda Lewis:

29. At the time of the hearing, Lewis was director of

payroll and benefits accounting. Beginning in 1990, she served

for ten years in internal auditing, reporting to Scallan.

30. From 1990 through the birth of her first child in 1996,

Scallan and his wife were close, social friends with Lewis and her

husband.

31. Over the course of their friendship, Lewis wearied of

her boss' inability to maintain boundaries in the workplace. When

her first child was born, she took advantage of this event to end

her social relationship with her boss. Scallan, however,

continued to make comments to Lewis or in her presence regarding

the sexual activities of other people, as well as comments

regarding Lewis’ physical appearance and the appearance of others.

Around the time of President Clinton's impeachment and trial in

the United State Senate, Lewis brought a dress to the office to

loan to a co-worker. Scallan asked Lewis if it were her "Monica

Lewinsky dress."

Susan Reed:

32. Susan Reed (Reed) has served as Scallan's secretary for

six years and worked for the district for 16 years. Her demeanor

under oath significantly undermined, if not entirely discredited,

Scallan's efforts to characterize Barton, Lewis, and others as a

willing audience for his sexual innuendos.

33. In particular, Reed was present for the incident in

which Scallan described Barton as buxom and was aware of its

upsetting effect upon Barton. She also heard the "Monica

Lewinsky" comment, and at least two references to the cleavage of

co-workers, including Lewis'.

34. On occasion, Reed attempted to warn Scallan that his

comments could be construed as sexual harassment, but for the most

part, she kept silent because she reasonably believed that she had

no power to change her boss' propensity to engage in offensive

sexual innuendo.

Elizabeth Cole:

35. In August 2003, Elizabeth Cole (Cole), a student at the

University of West Florida, commenced employment as a co-op

student. She remains in a similar position today. As a new

employee, Cole was required to obtain an ID badge. Scallan

arranged to take her by car to the building where the IDs were

made.

36. In the course of doing so, Scallan made gratuitous

references to the woman who makes the IDs, noting her appearance

in general and more specifically her "boob job."

37. Cole was not uncomfortable, and observed that the woman

was provocatively dressed. She regarded Scallan's comments as

inappropriate and "odd," coming from a man [her] "father's age."

In her words, ". . . that's my supervisor that I'm riding in a car

[with] to get my ID badge, only being there a week, it seemed

inappropriate to me."

Debbie Fussell:

38. From 1997-2002, Debbie Fussell was employed in Scallan's

department as an internal auditor.

39. Fussell heard Scallan make the "Monica Lewinsky"

comment, as well as frequent comments about clothes worn by women

in the building.

40. Scallan remarked in Fussell's presence upon women whose

skirts were so short that if one were to follow them up the stairs

it would be possible to look up their skirts.

41. Scallan also made what he believed to be jokes about

Fussell’s having an affair with a School Board member.

42. Fussell neither invited nor appreciated the foregoing

comments, but because Scallan was her direct supervisor, she did

not risk his ill-will by specifically telling him to stop.

Instead, she found, "It was just easier to laugh it off."

43. By way of defense, Scallan offered testimony from

witnesses who said he had not been inappropriate towards them,

such as principals whose schools were scheduled for routine audit.

One such witness volunteered that she had witnessed Scallan being

inappropriate towards another woman.

44. The strongest support for the School Board's case came

from Scallan's own testimony.

45. Although he denies the "blow-job" comment, he confirmed

significant details provided by Petitioner’s witnesses. Taken

together, they discredit Scallan's portrayal of himself as a

victim, lulled into the belief that his conduct was not offensive

because his subordinates did not complain.

46. For example, referring to Barton, he noted, ". . . I've

never had somebody sit in my office that upset before over

something I said to them. . . . I kept saying I am so sorry that

I've hurt your feelings this way. It was not my intent."

47. Scallan also corroborated Cole's account of the ID

incident, characterizing his behavior toward the co-op student as

benign and helpful. In Scallan's account of the event, ". . . I

don't want [Cole] to be offended when you see her, . . . she's

rather large breasted. I think she's had a boob job. . . . I

don't want you to be shocked when you see her."

48. Scallan's admitted fixation on appearances--particularly

the appearance of female co-workers--enhanced the credibility of

Petitioner's witnesses and underscored the reasonableness of the

School Board's requirement that sexual innuendo be prohibited in

the workplace.

49. Apart from Scallan's self-serving opinion, there is no

evidence that any of Scallan's employees who witnessed or were the

subject of his sexual innuendo were willing participants.

Although not every subordinate was upset by every sexually

inappropriate comment Scallan made, the record as a whole fully

supports the School Board's position that Scallan's subordinates

kept silent because they reasonably believed that he was in a

position to retaliate against those who objected to his sexual

innuendo.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has jurisdiction

over the subject matter of and the parties to this proceeding.

§§ 120.569, 120.571(1), and 1012.33(1), Fla. Stat.

51. The Petitioner has the burden of proving by a

preponderance of the evidence that it has just cause to terminate

Respondent’s employment. Petitioner has fulfilled its burden.

52. Petitioner contends that the incidents relied upon by

the School Board in support of its decision to terminate

". . . even if they are all true, do not amount to the type of

misconduct that warrants the termination of a 27 year employee

with an otherwise unblemished record."

53. To the contrary, the School Board reasonably requires

all its employees to refrain from sexual innuendo in the

workplace. Scallan's repeated decisions to subject subordinates

to comments made for their sexual "shock value" constitutes just

cause for the termination of employment contract.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

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

terminating Scallan's employment contract.

DONE AND ENTERED this 30th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 30th day of March, 2004.

COPIES FURNISHED :

Debra Dawn Cooper

1008 West Garden Street

Pensacola, Florida 32501

Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street

Pensacola, Florida 32501-3125

Jim Paul, Superintendent

Escambia County School Board

215 West Garden Street

Pensacola, Florida 32501

Honorable Jim Horne

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Room 1244

325 West Gaines Street

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.