04-001323 Miami-Dade County School Board vs. Charles S. Hepburn Status: Closed Recommended Order on Monday, November 22, 2004.

Summary: Petitioner failed to prove that bus dispatcher stuck his tongue in a bus attendant`s ear or sexually harassed her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL )

BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1323

)

CHARLES S. HEPBURN, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Rob ert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on August 25, 2004.

APPEARANCES

For Petitioner: Madelyn P. Schere, Attorney for

Miami - Dade County Scho ol Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Manny Anon, Jr.

Deputy General Counsel

AFSCME Florida Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

STATEMENT OF THE ISSUE

The issue is whether Petitioner may suspend Respondent for

30 days for sexual harassment.

PRELIMINARY STATEMENT

By Notice of Specific Charges served April 15, 2004,

Petitioner alleged that it employed Respondent as a radio

routing dispatcher, pursuant to the conditions of the collective

bargaining agreement between Petitioner and the American

Federation of State, County, and Municipal E mployees, Local

1184. Petitioner alleged that, on October 15, 2002, Respondent,

without provocation or invitation, stuck his tongue in the ear

of a coworker and whispered sexual comments to her. Petitioner

alleged that Respondent had previously made sexu ally offensive

comments to the same coworker. Petitioner alleged that it

suspended Respondent, without pay, for 30 days for the incident,

pursuant to Section 1012.22(1)(f), Florida Statutes, and Article

XI of the collective bargaining agreement.

Count I alleges that Article XI, Section 4C, of the

collective bargaining agreement authorizes discipline for "cause

arising from the employee's performance or non - performance of

job responsibilities." Petitioner's Rule 6Gx13 - 4a - 1.21 requires

employees to conduct themselves "in a manner that will reflect

credit upon themselves and the school system." Count I alleges

that Respondent's failure to comply with this rule constitutes

non - performance of his job duties, which is subject to

discipline under Articles II an d XI of the collective bargaining

agreement and Sections 1012.22(1)(f) and 447.209, Florida

Statutes.

Count II alleges that Petitioner's Rule 6Gx13 - 4A - 1.32

assures nondiscrimination in employment and the elimination of

harassment, including sexual harassm ent. Count II alleges that

Respondent's failure to comply with this rule constitutes non -

performance of his job duties, which is subject to discipline

under Articles II and XI of the collective bargaining agreement

and Sections 1012.22(1)(f) and 447.209, Florida Statutes.

Based on these allegations, the Notice of Specific Charges

requests a recommended order suspending Respondent for 30 days

without pay.

Respondent timely requested a formal hearing.

At the hearing, Petitioner called seven witnesses and

offered into evidence 13 exhibits: Petitioner Exhibits 1 - 13.

Respondent called seven witnesses and offered into evidence no

exhibits. All exhibits were admitted except that Petitioner

Exhibit 7 was not admitted for the truth.

The court reporter filed t he transcript on October 8, 2004.

The parties filed proposed recommended orders by November 16,

2004.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner since 1983.

After six years' service as a bus driver, Respondent became a

radio dispatcher. The radio dispatchers assign drivers and

attendants to specific bus routes. In doing so, the dispatcher

has no authority to deviate from a seniority - based list of drivers

and attendants.

2. Sandra Ann Welch has been employed by Petitioner since

August 2001 as a bus attendant. A bus attendant helps the driver

maintain order.

3. In the year that Ms. Welch had worked at the depot at

which Respondent worked, she and Respondent had had problems.

Respondent once assigned Ms. Welch to a bus with wheelchair - bound

stu dents, but Ms. Welch expressed her dissatisfaction with the

assignment. She complained about several of her assignments, even

though they were all based on the seniority of the available

attendants.

4. For awhile, to avoid conflict with Ms. Welch, Responden t

assigned her to a bus with unruly students, but no wheelchairs.

However, shortly prior to the incident, Ms. Welch was removed from

this assignment, which she had found satisfactory. Ms. Welch

blamed Respondent for the loss of this assignment, but, with the

start of the new school year, the assignment had come up for

rebidding by other attendants and one with more seniority had bid

for it. Ms. Welch returned to substituting for attendants who did

not show up for work.

5. On the morning of October 15, 2002, which is the date of

the alleged incident, Respondent was working at his usual location

in the radio dispatch room. In the small room with him were three

other dispatchers, all of whom are females.

6. After the bus runs that morning, Ms. Welch entered the

d ispatch room behind the desk of Lawanda Collins, another

dispatcher who has been employed by Petitioner for 16 years.

Ms. Welch stood next to Respondent's desk and spoke to him.

Although only a few feet away from Ms. Welch, Ms. Collins never

saw Ms. Welc h bend over toward Respondent or scream. Ms. Collins

never saw Respondent stick his tongue in Ms. Welch's ear, nor did

Ms. Collins see Ms. Welch return to the dispatch room after her

departure immediately after the alleged incident.

7. The observations of Ms . Collins, or lack of them,

contradict directly the testimony of Ms. Welch, who testified that

Respondent placed his tongue in her ear while she was in the

dispatch room talking to him after the bus runs on the morning of

October 15, 2002, and Ms. Welch sc reamed. Likewise, Respondent

denies Ms. Welch's claim. No witness saw the tonguing incident

that Ms. Welch described.

8. Ms. Welch's testimony is also undermined by her

performance as a witness. When testifying, with apparent

repulsion, about the tongue in her ear, Ms. Welch twice gestured,

with a pained expression, to her right ear -- once when she was

testifying in Petitioner's case in chief and once when she was

testifying in Petitioner's rebuttal case. However, she has

consistently stated that Respondent placed his tongue in her left

ear.

9. Ms. Welch stumbled when she attempted to lay out the

desks relative to the door that she entered. It was evident that

she was not recalling the layout of the dispatch room, but was

instead trying to make sure that the layout and her path were such

that she would end up on the "correct" side of Respondent.

10. Respondent's testimony is further undermined by what

appears to be a financial incentive for her to establish the fact

of the incident. Allegedly due to the incid ent, Ms. Welch has

been out on paid leave since January 2003. Additionally, she was

irritated at Respondent for what she thought was his role in

removing her from a favored assignment shortly before the alleged

incident.

11. Ms. Welch's willingness to fabric ate testimony about the

alleged incident of October 15, 2002, undermines the credibility

of her other testimony concerning sexual comments that Respondent

supposedly made to her at other times while she was under his

supervision. It is not as clear that R espondent never made these

statements as it is that he did not stick his tongue in

Ms. Welch's ear, but Petitioner has failed to prove that

Respondent is guilty of sexual harassment of Ms. Welch on these

other occasions.

CONCLUSIONS OF LAW

12. The Divisio n of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat.

13. Section 1012.22(1)(f), Florida Statutes, authorizes

Petitioner to terminate or suspend school employees, such as

Respondent.

14. Petitione r has the burden of proving the material

allegations by a preponderance of the evidence. See , e.g. ,

Allen v. School Board of Dade County , 571 So. 2d 568 (Fla. 3d

DCA 1990).

15. Petitioner has failed to prove the material

allegations set forth in the Noti ce of Specific Charges.

RECOMMENDATION

It is

RECOMMENDED that the School Board of Miami - Dade County,

Florida, enter a final order dismissing the Notice of Specific

Charges against Respondent.

DONE AND ENTERED this 22nd day of November, 2004, in

Tall ahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 22nd day of Novemb er, 2004.

COPIES FURNISHED:

Dr. Rudolph F. Crew

Superintendent

Miami - Dade County School Board

1450 Northwest Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Madelyn P. Schere, Attorney for

Miami - Dade Coun ty School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Manny Anon, Jr.

Deputy General Counsel

AFSCME Florida Council 79

99 Northwest 183rd Street, Suite 224

North Miami, Florida 33169

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All p arties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order must be filed with the agency that will

issue the final order in this case.