08-005912 Florida A And M University Board Of Trustees vs. Travis A. Blue Status: Closed Recommended Order on Thursday, May 14, 2009.

Summary: Disruptive conduct was found where insubordination amounted to simple (non-touching) assault.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A AND M UNIVERSITY )

BOARD OF TRUSTEES, )

)

Petitioner, )

)

vs. ) Case No. 08-5912

)

TRAVIS A. BLUE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on February 12, 2009, in Tallahassee, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Linzie F. Bogan, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

For Respondent: Sha'Ron James, Esquire,

Monica Evans, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent may be dismissed from employment with

Florida Agricultural and Mechanical University (FAMU) for

violation of FAMU Regulation 10.111.

PRELIMINARY STATEMENT

This termination case was referred, per contract, to the

Division of Administrative Hearings on or about November 25,

2008. The Division file reflects all pleadings, notices, and

orders intervening before final hearing on February 12, 2009.

At the commencement of the de novo hearing, Respondent’s

Motion for Continuance, filed the preceding day, was orally

denied.

Petitioner presented the oral testimony of Beverly Jean

Stephens, Willie J. Pettigrew, William Lewis Hayes, Sr., and

Edwin Pata, and the deposition testimony of Respondent, Nellie

Woodruff, and William Bennett, and had 13 exhibits (P-A, P-C,

P-D, P-F, P-G, P-H, P-I, P-J, P-K, P-L, P-M, P-N, and P-O, which

include the three depositions) admitted in evidence. There is

no Petitioner’s Exhibit B, and Petitioner’s Exhibit E was

withdrawn as repetitious and cumulative because it was already a

part of Exhibit C. Respondent presented the oral testimony of

Thomas Blue III, Darren Folsom, Dr. Edward R. Scott II, George

H. Thompson, and William Lewis Hayes, Sr., and testified on his

own behalf. Respondent’s Exhibit A was admitted in evidence.

The Transcript was filed on March 10, 2009. Both parties

timely filed their respective Proposed Recommended Orders on or

before the stipulated date of April 9, 2009, which proposals

have been considered in preparation of this Recommended Order.

“Stipulated facts” 1-6, and 8-9, as set out in Petitioner’s

Unilateral Prehearing Statement, and as orally agreed-to by

Respondent at hearing, have been utilized herein, with

appropriate modifications for grammar, continuity, and style.

FINDINGS OF FACT

1. FAMU Regulation 10.111, a duly promulgated regulation,

was in effect at all times relevant hereto. (Stipulation 5.)

2. FAMU Regulation 10.206, a duly promulgated regulation,

was in effect at all times relevant hereto. (Stipulation 6.)

3. FAMU Regulations 10.100, 10.101, 10.105, 10.106, and

10.120, all duly promulgated regulations, were in effect at all

times material.

4. At all times material, Dr. Cynthia Hughes-Harris served

as FAMU’s Provost and Vice-President for Academic Affairs. On

May 6, 2008, Dr. James H. Ammons, in his capacity as President

of FAMU, had delegated to Dr. Hughes-Harris authority to

administer all applicable FAMU regulations, policies, and

procedures. (Stipulation 9.)

5. The incident that gave rise to FAMU's letter of

termination to Respondent occurred in the FAMU football

stadium’s field house during the FAMU homecoming game on

November 1, 2008.

6. As of November 1, 2008, Respondent had been employed in

the football program at FAMU since 1997. He had served

successfully under five athletic directors without receiving a

bad employment rating. On June 28, 2008, he had received the

American Football Coaches Association’s Outstanding Equipment

Manager of the Year Award.

7. On November 1, 2008, and at the time of his

termination, Respondent was employed by Petitioner FAMU as

Coordinator, Intercollegiate Athletics. The contract period for

Respondent’s employment in effect at the time covered July 1,

2008, through June 30, 2009. (Stipulation 1.)

8. As Coordinator, Intercollegiate Athletics, Respondent

worked as the equipment manager for the FAMU football program.

(Stipulation 2.)

9. At all times material, Respondent’s employment

classification was Administrative and Professional (A&P), with a

regular appointment status. As such, Respondent was not a FAMU

employee with “permanent status” as contemplated by FAMU

Regulation 10.206. (Stipulation 3.)

10. At all times material, William Lewis Hayes, Sr., was

employed by FAMU as Director of Athletics. (Stipulation 4.) As

such, Mr. Hayes had oversight of FAMU’s Department of Athletics,

including 18 intercollegiate sports teams, and supervisory

responsibility for approximately 67 employees, including

Respondent. Not the least among Mr. Hayes’ many

responsibilities was to act as head coach. As a result,

Mr. Hayes was often referred to as “Coach Hayes.”

11. At all times material, Respondent was subordinate to

Coach Hayes.

12. Upon his arrival and assumption of his duties at FAMU,

in January 2008, Coach Hayes had become aware that scheduled

intercollegiate football games played in the FAMU stadium were

losing money. He also became aware that during home games, a

significant number of people were entering the football stadium,

its field, and its out-buildings without a game ticket.

13. Coach Hayes regarded all non-paying attendees for both

home and away games as gatecrashers and freeloaders. He

reasonably believed that if all non-paying attendees were denied

entrance, or if their number were at least reduced, the same

people would pay the cost of admission; FAMU would increase its

game receipts accordingly; FAMU’s $4,000,000, deficit would be

eliminated; and the significant number of athletic scholarships

which he administered would be on firmer financial ground.

14. On November 1, 2008, Coach Hayes was 65 years old. He

had successfully worked in athletics for 50 years and had

coached football for 39 of those years. He had the reputation

of being large and loud, and of occasionally emitting some of

the verbal belligerency characteristic of male athletics

generally, and of a “coach in charge” specifically. However, at

all times material, he was the “coach in charge,” and the record

is devoid of any evidence that he has ever been physically

violent to employees or co-workers.

15. In an attempt to reduce the Athletic Department’s

financial deficit, Coach Hayes started, in March 2008, to hold

weekly “game operations meetings” with mandatory attendance of

most of his staff. At these meetings, he explained his reasons

for tightening up on the number of non-paying game attendees;

pointed out problems encountered at the last game; and asked

security personnel and his subordinates to “brainstorm” ways to

keep people from getting into games without paying for a ticket.

Respondent attended at least some of these meetings.

16. At one of the game operations meetings, Sgt. Beverly

Stephens of the FAMU Police Department explained that the field

house at FAMU’s Stadium had been identified as a significant,

even the primary, entry point for non-paying attendees to get

into home games and that some people were using Respondent’s

name in their request for entry. Respondent was present at that

meeting.

17. Respondent was not the only FAMU employee assigned to

the athletic field house, but Respondent’s office, equipment

room, and general operating area were located in the field

house. During the meeting with Sgt. Stephens, Respondent became

visibly agitated by Sgt. Stephens’ remarks and stood up, loudly

challenging her statements. He was either cajoled into calmness

or physically restrained by a member of the group. Respondent

explained his out-of-proportion reaction to Sgt. Stephens as

“feeling disrespected” by her or because he was not familiar

with Sgt. Stephens’ way of speaking or doing things.

18. Prior to November 1, 2008, Respondent knew that one of

the ways Coach Hayes planned to thwart non-paying game attendees

was to retract entry credentials from everyone except absolutely

necessary game personnel. For purposes of this case, the term

“credentials” encompasses FAMU printed materials, FAMU

paraphernalia such as items to carry balls, and FAMU football

jerseys.

19. Willie J. Pettigrew had been FAMU’s Athletic

Transportation Officer for the 14 years preceding the material

time frame and held that position at all times material hereto.

Mr. Pettigrew had attended one or more of the game operations

meetings and knew Coach Hayes wanted to keep unauthorized people

out of the field house. At the commencement of the homecoming

game on November 1, 2008, Mr. Pettigrew observed a bunch of

people in the equipment room and told Respondent that he needed

to get them out.

20. As the first half of the homecoming game was ending,

Mr. Pettigrew told Coach Hayes that he had seen a bunch of

people in the field house; that the people had been gotten out

of there; and that Coach Hayes should go check out the equipment

room himself. Mr. Pettigrew was not specific as to why Coach

Hayes should check out the equipment room, but his inference was

that there continued to be unauthorized people in the equipment

room.

21. Most football games require only one or two ball boys

for each side of the field for a total of four ball boys per

game. At some point in time, possibly as Coach Hayes was making

his way towards the field house at half time on November 1,

2008, Coach Hayes told Respondent to clear out, from the end

zone near the field house, 6-to-12 boys who had failed to get

appointed as official ball boys but to whom Respondent had given

identifying jerseys, anyway. Respondent got the jerseys back

from the boys, but Respondent considered Coach Hayes’ directive

to him with regard to the ball boy “wantabees” to be Coach

Hayes’ first of three “disrespectful” actions towards

Respondent.

22. Respondent felt Coach Hayes had hurt and disappointed

boys whom Respondent had been mentoring, but there is no

credible evidence that the boys reacted in the same way as did

Respondent, and the boys were not ejected from the game, but

were asked to go sit in the stadium.

23. At half time on November 1, 2008, Respondent proceeded

to the equipment room inside the field house and closed the door

behind him. Coach Hayes came immediately behind Respondent, but

he reached the door to the equipment room after it closed, and

the equipment room door was locked when he tried to open it.

Coach Hayes twice knocked loudly on the door to the equipment

room, and when no one opened the door, Coach Hayes used his all-

access key to enter the equipment room. Respondent considered

the loud knocking to be the second of three disrespectful things

Coach Hayes did to him.

24. Apparently, when Coach Hayes unlocked the door and

entered the equipment room, an 18-year-old, very tall ball boy

and Respondent’s adult brother were with Respondent in

Respondent's office, and in the equipment room, or in another

equipment room office there was an adult ball boy "wantabee."

25. As soon as Coach Hayes entered the equipment room, he

observed an individual he did not recognize. He then passed on

to Respondent’s office within the equipment room, where he

observed Respondent and two other individuals. He demanded to

know who the two people in Respondent’s office were.

26. Precisely what Coach Hayes said in Respondent’s office

is in dispute, as is whether Coach Hayes went out into the

equipment room and came back into Respondent's office again, but

the evidence is clear that what Coach Hayes did and said

amounted to shaking his finger at Respondent and saying

something to the effect of “You know we have talked about

unauthorized people being in the field house. Why are you

trying me? Who are these people?” Respondent considered Coach

Hayes' inquiry to be the third instance of Coach Hayes

“disrespecting” him, and Respondent further felt Coach Hayes was

“harassing” him.

27. One of the two people in Respondent's equipment room

office with Respondent was Respondent’s brother. Coach Hayes

did not recognize the brother or the other person in

Respondent's office when he asked Respondent who they were.

28. Coach Hayes had given Football Coach Taylor permission

to have one or two people enter the fence around the field house

and set up a grill near the field house to cook for some of

Coach Taylor’s family. Respondent’s brother was one of these

cooks. Coach Hayes had authorized Coach Taylor’s group to enter

and leave the field house by a particular outside door so as to

use the restrooms near that door. Coach Hayes also was aware

that someone was cooking and preparing to serve food to the

football team in another room of the field house. However, at

the time Coach Hayes asked Respondent to identify the people in

Respondent’s office and to explain what they were doing there,

neither of them was cooking outside, using the restroom near the

appropriate doorway, or distributing food to football players.

At the time Coach Hayes asked Respondent who Respondent’s

brother and the tall ball boy were and what they were doing in

the equipment room’s office, both visitors were sitting in

Respondent’s office watching the game on television.

29. Upon Coach Hayes’ inquiry, Respondent informed him

that one person was a ball boy and one “the cook,” but

Respondent did not volunteer that the cook was also his brother.

30. Nobody showed Coach Hayes an admission ticket.

31. Respondent then advanced upon Coach Hayes, yelling

loudly that Coach Hayes should let Respondent do his job and

that Coach Hayes should stop “disrespecting” Respondent.

Respondent screamed at Coach Hayes that he would not respect

Coach Hayes or tolerate Coach Hayes’ treatment any longer.

Respondent got his own face within six-to-eight inches of Coach

Hayes’ face, and Coach Hayes began to back out of the doorway

into the hall. Respondent continued to loudly threaten to get

Coach Hayes fired and advanced on him in the hallway in such a

way that Tight End Coach Edwin Pata was attracted to the scene

by Respondent's yelling and recognized the situation as

"serious" and needing intervention. Coach Pata described

Respondent as being so far "in Coach Hayes’ face" that they

could have “kissed.”

32. Coach Hayes testified credibly that Respondent was

using profanity and making oral threats of physical violence

against him as he backed away from Respondent and Respondent

continued to advance upon him. Respondent denied both using

profanity and making threats. Although other witnesses waffled

as to whether Respondent used profanity at this time, Coach

Hayes is the more credible witness over Respondent on the

profanity issue. Regardless of what Respondent said, the volume

and tone of his voice, his demeanor, and his proximity to Coach

Hayes was physically threatening to Coach Hayes.

33. No credible witness heard Coach Hayes saying anything,

as he backed away from Respondent into the hallway, which

amounted to more than “I’m just trying to do my job.”

34. Once in the hallway, the noise and threatened violence

from Respondent was serious enough that Coach Pata grabbed

Respondent from behind and pulled him away from Coach Hayes.

Respondent then broke away from Coach Pata and pushed himself

into Coach Hayes’ face again, all the time screaming at Coach

Hayes. At that point, Coach Pata grabbed Respondent from behind

a second time and “handed off” Respondent to William Bennett,

FAMU’s Videography Coordinator, who forcibly removed Respondent

from the hallway into another room.

35. Neither Coach Pata nor Mr. Bennett felt physically

threatened by Respondent.

36. Coach Hayes was initially “stunned” by the sudden and

intense aggression of Respondent, who, though smaller than Coach

Hayes, was also approximately 35 years' younger, fitter, and

overwrought.

37. When the second half of the game began, Coach Hayes

was still so shaken by the incident with Respondent that he had

to sit down outside the field house. He sat there for the

entire second half of the game, unable to proceed with his usual

second half activities.

38. As early as FAMU’s Human Resources Office opened on

Monday, November 3, 2008, Coach Hayes went there to ask what to

do about Respondent. He was told to report the incident to the

FAMU Police Department, which he did.

39. A FAMU police officer interviewed Coach Hayes and

Respondent. He got a signed, written statement from Coach Hayes

and one from Respondent that day. In his written statement,

Respondent admitted that he “went off” on Coach Hayes. Other

potential witnesses could not be contacted on November 3, 2008,

so the FAMU Police Department did not get written statements

from other potential witnesses until much later. However, on

the basis of what he had heard that day, Officer Darren Folsom

concluded that Respondent should be charged with simple assault.

40. Later on Monday, November 3, 2008, Respondent accosted

Willie J. Pettigrew and threatened to “bar [his] ass from the

field house” for telling Coach Hayes to check out the equipment

room the previous Saturday, November 1, 2008.

41. Still later on Monday, November 3, 2008, a

representative of FAMU’s General Counsel’s Office physically

presented Respondent with a termination letter signed by

Dr. Hughes-Harris which read, in pertinent part, as follows:

Pursuant to Florida A & M University (FAMU

or University) Regulation 10.111, you are

hereby notified that your employment with

the University is terminated effective

immediately. This employment action is

taken against you for your disruptive

conduct on November 1, 2008. Please see the

enclosed copy of the police report filed on

November 3, 2008, as documentation in

support of this employment action.

42. After that, Respondent was escorted off campus by a

member of FAMU’s legal staff and one of its police officers.

43. Respondent has never been arrested for the alleged

assault.

44. The letter dated November 3, 2008, informed Respondent

that his employment with the University was terminated

“effective immediately.” (Stipulation 8.) He also received

this correspondence on November 7, 2008, by certified mail,

return receipt requested. (Stipulation 9.)

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to contract and Sections 120.569 and 120.57(1), Florida

Statutes (2008).

46. The duty to go forward was upon Petitioner FAMU.

47. The parties disagree as to the burden of proof herein,

but it does not matter whether that burden is by a preponderance

of the evidence, Allen v. School Bard of Dade County , 571 So. 2d

568 (Fla. 3rd DCA 1990); Dileo v. School Board of Dade County ,

569 So. 2d 883 (Fla. 3rd DCA 1990); cf. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987), or by clear and convincing evidence

Latham v. Florida Commission on Ethics , 694 So. 2d 83 (Fla. 1st

DCA 1997). The higher burden of proof has been met.

48. Respondent was rightfully terminated for cause,

pursuant to FAMU Regulation 10.111, which provides:

(1) Disruptive Conduct – Faculty,

Administrative and Professional, and USPS

employees who intentionally act to impair,

interfere with, or obstruct the orderly

conduct, processes, and functions of the

University shall be subject to appropriate

disciplinary action by the University

authorities.

(2) Disruptive Conduct shall include,

but not be limited to , the following:

a. Violence or threat of violence

against any employee, student or guest of

the University community;

b. Theft, conversion, misuse or willful

damage or destruction of University

property, or of the property of employees of

the University;

c. Interference with the freedom of

movement of any employee or guest of the

University;

d. Deliberate impediment to or

interference with the rights of others to

enter, use, or leave any University

facility, service, or scheduled activity, or

in carrying out their normal functions or

duties;

e. Deliberate interference with

academic freedom and freedom of speech of

any employee or guest of the University.

(3) The disciplinary action to be

imposed against an employee for any act of

disruptive conduct may include a written

reprimand, suspension or dismissal from

employment with the University. The penalty

that is imposed will depend upon the

seriousness of the offense and any

aggravating or mitigating circumstances.

(Emphasis supplied.)

49. Respondent’s unruly and threatening behavior was

insubordinate and disruptive to the smooth running of the

University and to Coach Hayes’ authority. For a short period of

time it also disrupted Coach Hayes’ ability to direct and govern

his subordinates.

50. Respondent’s only defense was that Coach Hayes, his

superior, was rude and disrespectful to him. Like beauty,

courtesy and respect are often merely "in the eye of the

beholder." Each of the three interactions between Coach Hayes

and Respondent that Respondent found disrespectful of Coach

Hayes towards Respondent were situations a majority of employees

would have considered annoying but non-provocative employment

interactions. However, as demonstrated by his interactions with

Sgt. Stephens and Mr. Pettigrew, Respondent has a pattern of

disproportionate reactions to other employees simply doing their

jobs.

51. Under the circumstances of this case, Coach Hayes’

final inquiry as to the names of facially unauthorized personnel

present within Respondent's area of control was not sufficient

provocation for Respondent to “go off at Coach Hayes,” or to

“get in Coach Hayes’ face.” While Respondent’s words and

actions do not rise to the level of an aggravated assault, a

simple assault does not require physical touching. Clearly,

Respondent's behavior constituted a threat of violence,

interfered with Coach Hayes' directional movement, and impeded

Coach Hayes from performing all of his employment duties on

November 1, 2008.

52. Admittedly, Coach Hayes’ assumption that Respondent

had disobeyed his repeated instructions not to have unauthorized

personnel in the field house probably would have been irritating

to anyone, but the Coach’s inquiry and finger-shaking was not

unreasonable, given the circumstances, and it did not warrant

Respondent’s out-of-proportion verbal assault and physically

threatening behavior towards him.

53. Respondent’s breaking-free from Coach Pata’s grasp and

renewed shouting in Coach Hayes’ face a second time, were

deliberate acts on Respondent’s part which interfered with Coach

Hayes’ right and ability to pursue his own employment duties of

making reasonable inquiries.

54. Coach Hayes’ reaction (being incapacitated for the

second half of the game) was in excess of Coach Pata’s and

William Bennett's reactions because Coach Hayes was older and

was the person whom Respondent chose to directly intimidate, but

both Pata and Bennett clearly recognized the serious threat of

violence by Respondent.

55. Respondent has an excellent employment record with

FAMU, but employers cannot maintain a safe working environment

where behavior such as Respondent's is potentially possible at

any time. Termination is not an excessive punishment under the

circumstances.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Florida Agricultural and Mechanical

University enter a Final Order ratifying its termination letter

of November 3, 2008.

DONE AND ENTERED this 14th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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 14th day of May, 2009.

COPIES FURNISHED:

Linzie Bogan, Esquire,

Avery McKnight, Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

Sha'Ron James, Esquire

Monica Evans, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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.