04-001912 Lee County School Board vs. Lyle Kehn Status: Closed Recommended Order on Monday, February 21, 2005.

Summary: Petitioner demonstrated that Respondent`s actions, including sexually suggestive conversations with a female student and viewing pornographic magazines with a male student, merited dismissal from employment as a custodian.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1912

)

LYLE KEHN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a forma l hearing was held in this case

on November 17, 2004, in Fort Myers, Florida, before Lawrence P.

Stevenson, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

For Respondent: Michelle Erin Berthiaume, Esquire

Berthiaume Law Firm, LLC

2550 First Street

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Lee County School

Board, may terminate Respondent, Lyle Kehn's, employment as a

custodian based upon the conduct alleged in the Petition for

Termination of Employment.

PRE LIMINARY STATEMENT

On May 1, 2004, the Lee County School Board (the "School

Board") served a Petition for Termination of Employment (the

"Petition") on Respondent, setting forth the allegations

justifying the termination of Respondent's employment as a

cu stodian. On April 29, 2004, prior to service, Respondent

contacted counsel for the School Board via e - mail to contest the

charges and request a hearing. On June 1, 2004, the School

Board referred the matter to the Division of Administrative

Hearings ("DO AH") for the assignment of an Administrative Law

Judge and the conduct of a formal hearing.

On July 27, 2004, the School Board filed a motion to amend

the Petition to add matters revealed during the course of

discovery. On August 5, 2004, Respondent file d a motion in

opposition to the motion to amend. By Order dated August 9,

2004, the School Board's motion to amend the Petition was

granted.

This matter was scheduled for final hearing on August 25

and 26, 2004. On August 18, 2004, the School Board filed a

motion for continuance, due to damage caused by Hurricane

Charley. The motion was granted by Order dated August 20, 2004,

and the matter was re - scheduled for hearing on November 17

and 18, 2004. On October 29, 2004, Respondent filed an

unopposed motio n to cancel the hearing on November 18, 2004.

The motion was granted, and the hearing was re - scheduled to

proceed for one day only, on November 17, 2004.

At the hearing, the School Board presented the testimony of

S. B., a female student at Cypress Lake High School, and of

R. P., a male who was a former student at Cypress Lake High

School. The School Board's Exhibits 1, 2, and 5 were admitted

into evidence. Respondent testified on his own behalf and

presented the testimony of Beverly Kehn, Respondent's mother.

Respondent offered no exhibits into evidence.

No Transcript of the hearing was filed at DOAH. At the

close of the hearing, the parties stipulated that their proposed

recommended orders would be filed on or before December 17,

2004. The School B oard timely filed a Proposed Recommended

Order on December 17, 2004. On December 16, 2004, counsel for

Respondent filed an unopposed motion for extension of time to

file a proposed recommended order, which was granted ore tenus

on the same date. In accor d with the motion for extension,

Respondent filed a Proposed Recommended Order on December 27,

2004.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing and the matters officially recognized, the following

findings are made:

1 . The School Board is the governing body of the local

school district in and for Lee County, Florida.

2. Since August 28, 1995, Respondent has been employed by

the School Board as a custodian. Respondent's employment with

the School Board is governed b y a collective bargaining

agreement between the Support Personnel Association of Lee

County and the School Board (the "SPALC Agreement").

3. During the 2002 - 2003 and 2003 - 2004 school years,

Respondent worked an evening shift at Cypress Lake High School.

His job assignments included work at the Center for the Arts

(the "Center"), which is a part of the Cypress Lake High School

campus.

4. During the 2003 - 2004 school year, S. B. was a junior at

Cypress Lake High School. She studied theater at the Center .

During the 2002 - 2003 school year, when she was a sophomore,

S. B. had dated R. P., a junior at Cypress Lake High School.

R. P. would stay late after school for band practice and met

Respondent and began talking to him. R. P. told S. B. that

Respondent was "cool" and had looked at pornographic magazines

with him. R. P. introduced S. B. to Respondent, though S. B.

never said more than "hi" to Respondent during the 2002 - 2003

school year.

5. In December 2003, S. B. was cast in "All The World's A

Stage," a play to be performed at the "Black Box," which was the

theater contained within the Center. S. B. could not recall the

precise dates of the performances, but she recalled that the

play was performed from Thursday through Saturday on a week just

before t he winter break.

6. On opening night of the play, the cast members were to

report to the Black Box at 6:00 p.m. S. B. had planned to go

home after classes ended at 2:00 p.m., but her mother was unable

to pick her up that afternoon. Instead, S. B. chatte d with

friends for a few minutes after classes ended, then walked over

to the Black Box. She went into the control booth, which

contained the lighting and audio controls for the theater, to

use the telephone there to call a friend.

7. Respondent entered the control booth while S. B. was

talking on the phone. He remarked on how dirty the booth was.

S. B. responded that she was an actress, and it was not her job

to clean the booth. Respondent replied that she should,

nonetheless, clean up the mess in the control booth.

8. Respondent then asked S. B. whether she had heard the

song, "Stacy's Mom." This song, popular at the time, was about

a boy dating a girl named Stacy, but preferring "Stacy's mom,"

who's "got it goin' on." The boy happily recalls mowin g the

lawn for Stacy's mom, who came out with just a towel on to show

him a spot he'd missed. S. B. stated that Respondent smiled and

nodded when he asked her about the song. S. B. found

Respondent's question unsettling and ignored it, resuming her

telep hone conversation.

9. After ending her telephone call, S. B. left the control

booth and went to the dressing room where she happened upon a

female friend. S. B. and her friend walked out to the theater

lobby. Respondent entered the lobby from the outsid e.

10. Respondent asked S. B. if she had talked to R. P.

recently. S. B. and R. P. had ended their relationship in an

acrimonious fashion the previous school year, as Respondent

knew. S. B. answered, "Why would I talk to that asshole?"

Respondent stat ed, "It's not his fault you're a slut," then

laughed and began walking away. S. B. asked, "What did you

say?" Respondent said, "You heard me" and walked away. S. B.'s

friend shook her head and said, "Well, that was blunt."

11. By this time, other cast m embers began arriving for

the show that evening. S. B.'s friend went to the dressing room

with the others, while S. B. remained in the lobby looking at

cast photos from previous shows. Respondent walked back into

the lobby. S. B. asked Respondent what R . P. had told him about

her, but he would not say. S. B. dropped a pencil and bent to

pick it up. Respondent said, "I've heard you like to bend

over."

12. S. B. walked into the theater, ending her interactions

with Respondent. She testified that she n ever spoke to

Respondent again. She did not believe the matter was a "big

deal" at the time because she was more focused on the opening

night of her play. S. B. did not report the incident to the

school administration.

13. On January 6, 2004, S. B. and a friend were looking

for a three - ring binder that her friend had lost before the

winter break. They asked John Hein, another custodian at

Cypress Lake High School, whether he had found the binder.

Mr. Hein told them that he had not seen a binder, but s uggested

that they ask Respondent, the evening custodian. S. B. said,

"You mean the pervert?" In response to Mr. Hein's obvious

confusion, S. B. stated that "everyone" knew that Respondent was

a pervert and that he was "always making remarks to students. "

14. On the same date they were made, Mr. Hein reported

S. B.'s comments to Rochelle Thimlar, an assistant principal at

Cypress Lake High School.

15. On January 9, 2004, Ms. Thimlar called S. B. to her

office to discuss the situation. Ms. Thimlar had S . B. make a

written statement. In her statement, S. B. briefly recounted

the remarks that Respondent made to her and stated that

Respondent looked at pornographic magazines with R. P., her

former boyfriend.

16. Ms. Thimlar forwarded S. B.'s statement to t he

school's principal, Tracy Perkins, who proceeded to call R. P.

to her office. R. P. made a statement in which he admitted to

bringing "inappropriate literature" to school and to sharing

that literature with Respondent. R. P. stated that he and

Respond ent would joke around about "sexual humor."

17. At his July 2004 deposition and again at the hearing,

R. P. clarified that the "inappropriate literature" consisted of

three magazines containing photographs of people engaged in sex

acts. R. P. testified that Respondent looked at the magazines

with him and that Respondent in no way voiced an objection or

attempted to confiscate the magazines. To the contrary,

Respondent asked R. P. whether he and S. B. engaged in the sex

acts depicted in the magazines. R . P. testified that he would

not have shown these magazines to any other adult. Finally,

R. P. testified that he was not aware of S. B.'s statement to

Ms. Thimlar at the time he made his statement to Ms. Perkins.

18. On February 2, 2004, Ms. Thimlar ask ed S. B. to write

a more detailed statement, preparatory to initiating a formal

investigation of Respondent. This statement was consistent with

the testimony recounted above. Ms. Thimlar then commenced

efforts to contact S. B.'s mother to determine wheth er the

student and her parents would cooperate with an investigation.

On February 23, 2004, Ms. Thimlar finally spoke with S. B.'s

mother, who stated that she wanted action taken immediately to

remove Respondent from the campus.

19. A formal complaint reg arding Respondent's conduct was

sent to Denise Phillips - Luster, the director of Equity and

Recruitment for the School Board, on February 24, 2004. On the

same date, the School Board suspended Respondent, with pay and

benefits, pending the outcome of the f ormal investigation.

20. In accordance with School Board policy and the SPALC

Agreement, Ms. Phillips - Luster conducted the investigation and

prepared an investigative summary of her findings. On March 18,

2004, a predetermination conference was held to allow Respondent

to respond to the allegations. Prior to the predetermination

conference, Respondent was provided a copy of the investigative

summary. Respondent and his mother attended the

predetermination conference and were each given an opportunity

t o speak and set forth Respondent's side of the story.

21. Respondent denied knowing S. B. and denied every

particular of her story. At the hearing in this matter,

Respondent reiterated his denial. He testified that he cleans

the Black Box at the end of h is shift and would never have been

there as early as S. B. alleged.

22. As to the incident with R. P., Respondent testified

that R. P. tended to hang around after school, trying to sneak

into the band rooms to practice while he waited for his ride

home. Respondent's job was to lock down the area to clean it.

One afternoon, Respondent found R. P. in one of the band rooms

eating and reading a magazine at the podium in the front of the

room. Respondent told R. P. to leave the room. R. P. obeyed

Responden t, but left his magazines on the podium. Respondent

saw that they were pornographic magazines and took them to his

supervisor.

23. By letter dated April 28, 2004, from Georgianna

McDaniel, the School Board's personnel director, Respondent was

notified tha t probable cause had been found to believe the

allegations were true and that a recommendation would be

forwarded to the School Board that Respondent's employment be

terminated.

24. The Petition was served on Respondent on May 1, 2004.

As initially served , the Petition alleged only the facts

concerning the incident with S. B. At the time, the incident

with R. P. was considered collateral to the main investigation

because the investigators knew only that R. P. had shown

Respondent "inappropriate literature " of some nature. The

investigators believed that R. P.'s role, if any, would be to

corroborate S. B.'s statements. It was only at R. P.'s

deposition, taken July 26, 2004, that the School Board learned

that the "inappropriate" material consisted of porno graphic

magazines containing photographic depictions of sex acts. This

deposition caused the School Board to file a motion on July 27,

2004, to amend the Petition to include the charges related to

Respondent's actions with R. P.

25. Respondent has been re primanded, warned, or cautioned

for his behavior on at least eight previous occasions. On

April 27, 1998, he received a letter of caution regarding

comments and actions toward a female co - worker that could be

interpreted as "suggestive," if not "sexual ha rassment," as

alleged by the co - worker. On January 8, 2001, Respondent

received a letter of reprimand for inappropriate, suggestive

remarks to a female night school student.

26. On four other occasions, Respondent has been

reprimanded for inappropriate remarks and/or behavior toward

co - workers, including a June 7, 2000, reprimand for

discriminatory remarks he made to and about Spanish - speaking

co - workers. Respondent denied making the remarks, despite the

contrary statements of multiple witnesses.

27. In the instant case, given Respondent's denial that he

looked at pornography with R. P. or that he had ever even met

S. B., the main question is the credibility of the witnesses.

The story related by S. B. was credible, and no reason was

presented at the he aring as to any motive she would have to

invent her story. She barely knew Respondent, had no desire to

press the case against him, and had nothing personal to gain by

testifying against him. She did not think the incident was a

"big deal" at the time an d said little or nothing about it to

her friends or parents. She did not complain to school

officials. Rather, her off - the - cuff statement to another

custodian that Respondent was a "pervert" caused the assistant

principal to call her in for a conference. S. B.'s testimony

concerning the incident with Respondent on opening night of "All

The World's A Stage" is credited. Respondent's contrary

testimony is not credible.

28. Likewise, R. P. had no motive to invent a story about

Respondent. In fact, given R . P.'s rancorous break - up with

S. B. and the continuing animosity between them, his natural

motive would more likely be to support Respondent and, thereby,

put the lie to his former girlfriend's story. Further, R. P.

appeared genuinely to like Responde nt and was reluctant to

testify against him at the hearing. Nevertheless, R. P.

admitted looking at pornographic magazines with Respondent, as

detailed above. R. P.'s testimony is credited. Respondent's

contrary testimony is not credible.

CONCLUSIONS OF LAW

29. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursuant to Section 120.569

and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes

(2004). 1/

30. The School Board has the burden to establish by a

preponderance of the evidence the grounds for disciplining

Respondent. See , e.g. , McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen

v. S chool Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Dade County , 569 So. 2d 883, 884

(Fla. 3d DCA 1990).

31. Subsection 1012.40(2)(b), Florida Statutes, provides

that educational support employees such as Responden t may be

terminated only "for reasons stated in the collective bargaining

agreement."

32. The SPALC Agreement provides that any discipline "that

constitutes a reprimand, suspension, demotion or termination

shall be for just cause." SPALC Agreement at Sec tion 7.09. The

SPALC Agreement does not define "just cause" or provide for a

plan of progressive discipline.

33. In a previous case, the School Board adopted the

following Conclusions of Law, which is hereby adopted as the

rule for the instant case:

27. The School Board construes "just cause"

in [then] Section 7.094 of the SPALC

Agreement in the same manner as that phrase

is used in Section 1012.33 relating to

instructional staff. That statute provides

in pertinent part that:

Just cause includes, but i s not

limited to, the following

instances, as defined by rule

of the State Board of Education:

misconduct in office, incompetency,

gross insubordination, willful

neglect of duty, or conviction of a

crime involving moral turpitude.

Section 1012.33(1)(a). See also Rule

6B - 4.009 (defining the terms used in Section

1012.33(1)(a)).

Lee County School Board v. Simmons , Case No. 03 - 1498 (DOAH

July 15, 2003)(adopted in toto by Final Order dated August 12,

2003).

34. Florida Administrative Code Rule 6B - 4.009(3 ) provides:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule

6B - 1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006 , F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

35. Florida Administrative Code Rule 6B - 1.006 (3) provides,

in relevant part:

Obligation to the student requires that

the individual:

(a) Shall make reas onable effort to

protect the student from conditions harmful

to learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping cond ition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination. . . .

36. The School Board met its burden to prove that it has

"just cause" to termina te Respondent's employment for misconduct

in office. Respondent engaged in inappropriate conduct with two

students while he was employed as a custodian by the School

Board. His sexually - tinged conversations with S. B. clearly

exposed her to unnecessary e mbarrassment. If these

conversations did not constitute sexual harassment, they

certainly fell far short of a reasonable effort to protect S. B.

from such harassment or from conditions harmful to her mental

health or safety. Respondent's viewing of porno graphy with

R. P. and his lascivious commentary thereto, also constitute

misconduct in office. As an adult employee of the School Board,

Respondent had a duty to make reasonable efforts to protect

R. P. from conditions harmful to his mental health o r safety,

not to participate in the harmful activity with the student.

37. The facts proven in this case might be cited as just

cause for a lesser form of discipline, such as a suspension

coupled with counseling, directed at reforming Respondent's

behavio r toward students and co - workers. However, given

Respondent's long history of reprimands and warnings for his

inappropriate behavior, including two previous reprimands for

sexually suggestive remarks to females, the School Board was

fully justified in dec iding to terminate Respondent's employment

after concluding its investigation of this matter.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner, the Lee County School Board,

issue a final order that terminates Respondent, Lyle Kehn's,

employment.

DONE AND ENTERED this 21st day of February, 2005, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Adminis trative 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 21st day of F ebruary, 2005.

ENDNOTE

1/ All references to Sections and Chapters are to the 2004

compilation of the Florida Statutes. All references to Rules

are to the current version of the Florida Administrative Code.

COPIES FURNISHED :

Honorable John Winn

Comm issioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. James W. Browder, III

Superintendent of Schools

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Daniel J. Wo odring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida

J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Michelle Erin Berthiaume, Esquire

Berthiaume Law Firm, LLC

2550 First Street

Fort Myers, Florida 33901

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 R ecommended Order should be filed with the agency that

will issue the final order in this case.